                        UNITED STATES, Appellee

                                     V.

                     Tedio ALAMEDA, Senior Airman
                       U.S. Air Force, Appellant


                               No. 01-0534


                          Crim. App. No. 33529



       United States Court of Appeals for the Armed Forces

                          Argued April 3, 2002

                        Decided August 28, 2002

    GIERKE, J., delivered the opinion of the Court, in which
 BAKER, J., and COX, S.J., joined. EFFRON, J., filed an opinion
concurring in part and dissenting in part. CRAWFORD, C.J., filed
                      a dissenting opinion.

                                  Counsel

For Appellant: Jack B. Zimmermann (argued); Captain Shelly W.
   Schools, Terri R. Z. Jacobs, and Kyle R. Sampson (on brief);
   Major Jefferson B. Brown.

For Appellee: Captain Adam Oler (argued); Colonel Anthony P.
   Dattilo and Lieutenant Colonel Lance B. Sigmon (on brief).

Military Judge:    Kurt D. Schuman


  This opinion is subject to editorial correction before final publication.
United States v. Alameda, No. 01-0534/AF


      Judge GIERKE delivered the opinion of the Court.

      A general court-martial composed of officer and enlisted

members convicted appellant, contrary to his pleas, of attempted

premeditated murder, disobeying the order of a superior

commissioned officer, assault consummated by a battery, and

communicating a threat, in violation of Articles 80, 90, 128, and

134, Uniform Code of Military Justice (UCMJ), 10 USC §§ 880, 890,

928, and 934, respectively.       The adjudged and approved sentence

provides for a dishonorable discharge, confinement for 18 years,

total forfeitures, and reduction to the lowest enlisted grade.

Pursuant to Article 58b, UCMJ, 10 USC § 858b, the convening

authority waived automatic forfeitures for the benefit of

appellant’s spouse and children.           The Court of Criminal Appeals

affirmed the findings and sentence in an unpublished opinion.

      This Court granted review to determine whether the findings

and sentence should be set aside because appellant’s rights under

the Fifth Amendment to the United States Constitution and Article

31, UCMJ, 10 USC § 831, were violated when the prosecution

elicited testimony that appellant remained silent when he was




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United States v. Alameda, No. 01-0534/AF


apprehended, and then commented on his silence during final

argument.1    For the reasons set out below, we reverse.

                            Factual Background

      The charges arose from two incidents between appellant and

his wife.    The first incident was on April 30, 1998 and the

second on May 19, 1998.

      Mrs. Alameda testified that appellant engaged in a pattern

of physical and verbal abuse, domination and control, and threats

to kill her that began in 1990, while he was undergoing technical

training shortly after he enlisted in the Air Force, and

continued until appellant was placed in pretrial confinement as a

result of the charges that are the subject of this appeal.       Mrs.

Alameda was medically evacuated from Kadena Air Base (AB),

Okinawa, Japan, in 1991 because of stress and depression that she

attributed to appellant’s behavior.        She described an incident at

McGuire Air Force Base, New Jersey, between appellant’s two tours

of duty at Kadena AB, in which appellant held a large butcher

1
  We heard oral argument in this case at the Seattle University
School of Law, Seattle, WA, as part of the Court’s “Project
Outreach.” See United States v. Pritchard, 45 MJ 126, 127 n.1
(1996). The granted issues are:

      I. WHETHER THE FINDINGS AND SENTENCE SHOULD BE SET ASIDE
      BECAUSE APPELLANT’S RIGHT TO REMAIN SILENT UNDER THE FIFTH
      AMENDMENT WAS VIOLATED WHEN THE PROSECUTION ELICITED
      TESTIMONY THAT APPELLANT DID NOT RESPOND VERBALLY WHEN
      ARRESTED, AND WHEN THE PROSECUTION COMMENTED ON THIS DURING
      FINAL ARGUMENT.

      II. WHETHER THE FINDINGS AND SENTENCE SHOULD BE SET ASIDE
      BECAUSE APPELLANT’S RIGHT TO REMAIN SILENT UNDER ARTICLE
      31(b), UCMJ, WAS VIOLATED WHEN THE PROSECUTION ELICITED
      TESTIMONY THAT APPELLANT DID NOT RESPOND VERBALLY WHEN
      ARRESTED, AND WHEN THE PROSECUTION COMMENTED ON THIS DURING
      FINAL ARGUMENT.




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United States v. Alameda, No. 01-0534/AF


knife against her throat, threatened to kill her, and shoved her

into a door, fracturing her jaw.           Appellant and Mrs. Alameda were

divorced in 1993 and then remarried in 1994.

      Mrs. Alameda testified that on the morning of April 30,

1998, appellant became upset when he discovered an e-mail message

on her computer from a male high school friend of hers who wanted

to visit her in Okinawa.       According to Mrs. Alameda, appellant

tossed the computer off the table, smashed the telephone when she

tried to call for help, “flicked” a towel at her head, shoved and

grabbed her, punched her on the back of her head and her back,

and threatened to kill her.       She testified that after appellant

departed for work, she e-mailed a friend and neighbor, Tammy

Warner, and asked her to call the Air Force Security Forces

(Security Forces).

      After the Security Forces investigated the incident,

appellant’s commander, First Lieutenant (1Lt) Deborah Haussler,

ordered appellant to move out of the family quarters and into a

dormitory.    She gave appellant a written order prohibiting him

from having any contact with his wife and child, unless it was

prearranged by certain named members of the unit.

      About a week later, the Family Advocacy therapist contacted

1Lt Haussler and expressed concern that she had been unable to

contact Mrs. Alameda.      1Lt Haussler visited the therapist and

examined Mrs. Alameda’s Family Advocacy file, which revealed that

appellant had violated a similar “stay away” order on a previous

occasion.    1Lt Haussler became concerned about Mrs. Alameda’s

welfare and decided to visit her at home “to make sure she was




                                      4
United States v. Alameda, No. 01-0534/AF


okay.”    While visiting Mrs. Alameda, 1Lt Haussler noticed bruises

on Mrs. Alameda’s upper arms.

      Sometime during the week of May 12, 1998, 1Lt Haussler

received an “early return of dependents” (ERD) packet to allow

Mrs. Alameda and her son to leave Okinawa at government expense

before appellant completed his tour of duty.         She did not know

how the ERD packet originated.        She informed appellant that he

needed to sign the packet.       He refused to sign it because he did

not want his son to leave Okinawa.         1Lt Haussler subsequently

learned that an ERD request could be approved without the

military member’s signature, and she informed appellant on May 18

that the request would be processed without his signature.         1Lt

Haussler contacted Mrs. Alameda at approximately 2:30 p.m. on May

19, and they made an appointment for Mrs. Alameda to sign the ERD

request in 1Lt Haussler’s office at about 3:30 p.m. on that day.

      On the morning of May 19, Mrs. Alameda contacted the

squadron first sergeant and told him that she needed money for

food.    When her request was transmitted to appellant, he

expressed concern that his money was not being used for food.

With the approval of the first sergeant, appellant purchased food

at the base commissary and, accompanied by two noncommissioned

officers, took the food to the family residence in the early

afternoon.    While at the residence, appellant gathered some

personal clothing and effects, and downloaded some information

from his computer.      His escorts returned to the squadron,

arriving at about 2:15 p.m.       Appellant departed the family

residence in his own vehicle.        He did not return to work with his




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United States v. Alameda, No. 01-0534/AF


escorts because, as he told his supervisor, he wanted to see a

chaplain.

      Chaplain (Captain) Tim Wagoner testified that he received a

call from appellant, asking to see him.          Base telephone records

established that the call was at 1:55 p.m.          Appellant told

Chaplain Wagoner that he was at Chapel 2; Chaplain Wagoner was at

Chapel 1.    Chaplain Wagoner agreed to see appellant, who came to

Chapel 1.    Both chapels are near the housing area where the

Alameda residence was located.        According to the telephone

records and Chaplain Wagoner’s testimony, appellant called his

unit at 2:09 p.m. and told them that he was with the chaplain.

Chaplain Wagoner testified that he counseled appellant for “a

little better than an hour.”        He was not sure whether he had

finished counseling appellant when he made another telephone call

at 3:10 p.m.

      Mrs. Alameda departed her on-base place of employment at

about 3:00 p.m. in anticipation of her appointment with 1Lt

Haussler.    She arrived at home at about 3:15 p.m., saw the

groceries, and noticed that some of appellant’s clothing that she

had set aside had been disturbed.          She called 1Lt Haussler and

complained that appellant had been in the house in spite of the

“stay away” order, had left her groceries instead of money, and

had rummaged through her belongings.          1Lt Haussler told her,

“come down to my office, sign the ERD letter.          We’ll get you off

this island as quickly as we can.”          Mrs. Alameda responded that

she would come immediately.

      Mrs. Alameda testified that as she was leaving the

residence, appellant entered.        She testified that when she saw


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United States v. Alameda, No. 01-0534/AF


appellant, she “was hysterical . . . [and] completely freaked out

that he was standing in front of [her].”          She testified that

appellant tried to calm her down.          She moved to a corner of the

room, appellant sat on a couch, and he started asking, “Do you

want a divorce? Do you want this?”          She did not respond.   They

began to move around the house.           Appellant was putting his hands

on her because she “was trying to scream out and stuff,” and

“trying to get away.”      She testified, “Every move I made, he was

right on top of me.”

       Mrs. Alameda testified that at one point, appellant was

behind her and he covered her mouth and pinched her nose so that

she could not breath.      She struggled free and ran toward the

door.    She saw appellant pulling a Hefty garbage bag from his

pocket.    It was black with yellow straps, tightly folded, and

appeared to have never been opened.          Appellant was trying to hold

her with one hand and unfold the bag with the other.          She tried

to get away and appellant grabbed her from behind.          She

testified, “[H]e got it up as far as my face and stuff, and was

trying to get it open to where he could get it over my head and

stuff, but I ended up ducking down, struggling, and getting out.”

       Mrs. Alameda testified that she ran into the bedroom,

telling appellant that she would do “[w]hatever you want me to

do.”    She asked him, “Please, let’s go back into the living room

and talk.”    As appellant turned around to go into the living

room, she slammed the bedroom door and locked it, and then

crawled out a window.




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United States v. Alameda, No. 01-0534/AF


      She ran across the street, screaming.          A neighbor, Melanie

Young, let Mrs. Alameda into her house, where Mrs. Alameda called

1Lt Haussler.

      On cross-examination, Mrs. Alameda testified that she did

not remember whether she told the Security Forces that appellant

had attempted to “strangle” her.           In response to defense

counsel’s questions, she insisted that appellant did not try to

strangle her, but tried to put the garbage bag over her head.

      1Lt Haussler testified that Mrs. Alameda called her at 3:45

p.m. and was screaming that appellant had been in the house and

tried to kill her.      1Lt Haussler called the Security Forces and

then drove to the Alameda residence.

      Both 1Lt Haussler and Ms. Young noticed red marks around

Mrs. Alameda’s neck.      A doctor at the base hospital noticed that

she had superficial abrasions on her neck and scratches on her

nose.   He also noticed bruises on her arm and leg, and a “goose

egg” on the back of her head.

      Technical Sergeant (TSgt) Gowan and his wife drove past the

Alameda quarters at about 3:15 p.m. on May 19.           They both

testified that they saw a van, later determined to be

appellant’s, parked near the Alameda residence at about 3:15 p.m.

      TSgt Eugene Moody, a member of the Security Forces, was on

routine patrol when he was directed to respond to the Alameda

residence.    He knew where it was because he had also responded to

the April 30 incident as well as an earlier incident.           In

response to a question from trial counsel, TSgt Moody testified

that when he observed appellant after the April 30 incident,




                                      8
United States v. Alameda, No. 01-0534/AF


appellant “pretty much was without any emotion, just a plain look

. . . .”

       When TSgt Moody arrived at the Alameda residence on May 19,

he noticed that the bedroom window was open with the blinds

hanging out the window.       Mrs. Alameda was “excited, and . . .

definitely upset.”      According to TSgt Moody, Mrs. Alameda said

that appellant “had a bag around [her] neck” and tried to kill

her.    He testified that he thought she meant that appellant had

put the bag around her neck, but she was not “really clear.”

TSgt Moody observed that Mrs. Alameda had red marks on the sides

of her neck.

       TSgt Moody then began to look for appellant.         He began by

searching the street adjacent to the Alameda residence and then

proceeded to the dormitory area.           Based on a description of

appellant's van, he located it in the dormitory area and saw

appellant sitting on the dormitory stairs, talking to another

individual.    TSgt Moody called for another unit to assist.           When

it arrived, TSgt Moody approached appellant and asked him if he

was Airman Alameda, and appellant responded that he was.           TSgt

Moody asked the person next to appellant to move away, asked

appellant for his identification card, and appellant complied.

As the trial counsel continued the direct examination of TSgt

Moody, the following colloquy occurred, giving rise to the

granted issues:

           Q. Did he ask any other questions during this
           time?

           A. No.

           Q. Did he say anything like, “What do you want?
           What are you here for?” or anything like that?


                                      9
United States v. Alameda, No. 01-0534/AF



           A. No.

           DC: Objection, Your Honor.      Irrelevant.

           MJ: Overruled.

           [Questions by assistant trial counsel]

           Q. Did he make any such statement as that?

           A. No, sir, he did not.

           Q. After you verified it was, in fact, Senior
           Airman Tedio Alameda, what did you do next?

           A. I informed him that he was going to be
           apprehended for an alleged assault.

           Q.    And what did he say or do then?

           A. He didn’t say anything. He didn’t do
           anything. He had a look like [witness stared
           ahead] and that was it.

           Q.    Did he ask you why he was being arrested?

           A.    No, sir, he did not.

           Q.    Did he act like he knew what was going on?

           DC:   Objection, Your Honor.     Calls for
           speculation.

           MJ:   Again, you can ask him what he observed, but
           you can’t ask him for those types of conclusions
           of whether or not he did understand.

           Q. So, again, when you asked Airman Alameda for
           his ID card, did he say anything?

           A.     No, sir.

           Q. And when you told him that he was being
           apprehended, did he say anything?

           A.    He said -

           DC:    Objection.   Asked and answered, Your Honor.

           MJ:    I’ll allow it, as long as you move on.

           ATC:    Yes, Your Honor.




                                      10
United States v. Alameda, No. 01-0534/AF


           Q. How would you describe Airman Alameda’s
           reaction after you told him he was being placed
           under arrest?

           A. Once again, just as in the previous situation
           where I had made contact with Airman Alameda, he
           didn’t have much of a reaction or much emotion at
           all.

      On cross-examination, defense counsel asked TSgt Moody if

Mrs. Alameda used the word, “strangle.”       He responded,

            No. I remember, “He was trying to kill me. He was
            trying to strangle me. He was trying to -- he had a
            bag around my neck and trying to strangle me.” But the
            term “strangle” was in there also.

      Staff Sergeant (SSgt) Steven Anthony was directed to search

appellant’s dormitory for a “dark brown or black plastic garbage

bag with yellow drawstrings.”        He searched the entire dormitory,

and he found a box of Hefty garbage bags matching that

description in a trash can in a common bathroom.       Later

examination by an agent of the Air Force Office of Special

Investigations (OSI) revealed that one garbage bag had been

removed from the box and 19 were remaining.       A latent finger

print on the Hefty box was identified as appellant’s.         A

stipulation of expected testimony of a member of the dormitory

custodial staff established that the custodial staff did not use

Hefty garbage bags, and that the trash cans in the bathrooms were

emptied daily.

      In the same trash can, SSgt Anthony found an unopened

package of latex gloves and a utility knife, both in their

respective original packaging.        SSgt Anthony also found a plastic

bag bearing the logo of the Army and Air Force Exchange Service

(AAFES), containing an unopened roll of 2-inch masking tape, and

an AAFES receipt dated May 16 reflecting a purchase of coffee,


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United States v. Alameda, No. 01-0534/AF


utility knife, latex gloves, a roll of masking tape, and a pack

of GPC cigarettes.      The plastic bag was located in a trash can

across the bathroom from the one where he found the Hefty garbage

bags.

      The plastic bag, receipt, roll of masking tape, latex

gloves, and utility knife were received in evidence over defense

objection.    The defense argued that the items had not been

connected to appellant.       The prosecution argued that the items

were relevant to show premeditation, and that they were

sufficiently linked to appellant by the fact that the cigarettes

were the same brand appellant smoked, and that all the items were

thrown away at about the same time, in the same new condition as

the Hefty garbage bags, in the common bathroom of appellant’s

dormitory.    The military judge admitted the evidence, finding the

items relevant to show “some sort of a plan or premeditation.”

      On a date not reflected in the record, Mrs. Alameda

delivered a pack of GPC cigarettes to the OSI and informed them

that appellant had dropped them during the May 19 altercation.        A

fingerprint lifted from the cigarette pack was not appellant’s.

      Appellant did not testify.       His counsel concentrated on

attacking the credibility of the Government witnesses, especially

Mrs. Alameda.     In addition, the defense presented the testimony

of three witnesses to contradict Mrs. Alameda’s testimony.

      The defense presented the stipulated testimony of a senior

airman who was involved in the in-processing of appellant into

the confinement facility during the early morning hours of May

20, 1998.    The stipulation recites that appellant was in

possession of a partially empty package of GPC cigarettes when he


                                      12
United States v. Alameda, No. 01-0534/AF


was in-processed.     This testimony was offered to contradict Mrs.

Alameda’s statement that appellant inadvertently left his

cigarettes in the family quarters on May 19.

      The stipulated testimony of Mrs. Crystal Hammond recites

that she did not hear any “yelling, screaming, or other loud

noises coming from the Alameda residence.”           It further adds that

Mrs. Hammond would testify that she was asleep with the

television on between approximately 3:00 p.m. and 4:00 p.m., with

the windows and doors closed, and that, under these

circumstances, she could hear very little, if anything, from

outside.

      A nine-year-old girl, whom Mrs. Alameda observed when she

ran out of her apartment, testified that Mrs. Alameda left from

her front porch, not from a bedroom window.           The girl testified

that when she saw Mrs. Alameda, the latter “was standing right on

the porch, putting her keys in.”           She also testified that Mrs.

Alameda locked the doors to her car, which was parked in a space

marked with the number of her house.

      Before closing arguments, when the military judge instructed

the members, he included the following admonition:

            The accused has an absolute right to remain silent.
            You will not draw any inference adverse to the accused
            from the fact that he did not testify as a witness.
            The fact that the accused has not testified must be
            disregarded by you.

      During arguments on findings, trial counsel made a specific

reference to TSgt Moody’s testimony about appellant’s lack of

reaction or response when he was apprehended.           The following

exchange took place in the presence of the members:




                                      13
United States v. Alameda, No. 01-0534/AF


            TC: “. . . And lo and behold, the cops came and picked
            me up, and I was just sitting there on the steps,
            didn’t know what this was about,” but didn’t bother
            even to ask.

            Now, does that indicate consciousness of guilt?    The
            police come and say, “Stand up” --

            DC: Objection, Your Honor. The accused is under no
            obligation to make a statement and this drawing an
            adverse inference from his failure to proclaim his
            innocence.

            TC: Your Honor, the witness testified about what he
            said and did when they apprehended him.

            MJ: I think it’s fair comment on the state of the
            evidence. However, I will emphasize once again the
            fact that this accused is under absolutely no
            obligation to make any statement during the trial in
            his defense.

            TC:   Yes, Sir.

            TC: And when Sergeant Moody approaches him on the
            steps and says, “Are you Tedio Alameda? Stand up.
            You, man, get away from him. Let me see your
            identification card.” He doesn’t even say, “What’s
            this all about?” Even though --

            DC: Object again, Your Honor. I believe this is not
            fair comment on the evidence. This is comment on his
            exercise of his right to remain silent.

            TC: Your Honor, the witnesses testified in this court,
            without objection, to that specific fact.

            MJ:   With regard to he did not ask what was going on?

            TC:   That’s right.

            MJ: Okay. Now we’ve got that. We know that is in
            evidence. Now with regard -- nothing will be held
            against this accused because he did not say anything in
            his defense. Okay? So let’s keep this very clear.

      Regarding the items found in the dormitory bathroom, trial

counsel argued that they showed a premeditated intent to kill.

Trial counsel further argued that appellant sat in the chaplain’s

office and thought to himself: “I’m leaving here and I’m going to

go take that whore out.       And I’ve got the implements in my car.


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United States v. Alameda, No. 01-0534/AF


I’ve got the box of bags.       I’ve got the rubber gloves.   I’ve got

the knife.    I’ve got the tape.”      Trial counsel continued his

argument:

            Who knows what sinister plan he had in mind? That he
            was going to subdue her with the bag? Gag her and bind
            her with the tape? Cut her wrists? Cut her throat?
            Keep the blood off his hands?

            And then when he fails, when he fails because she’s
            smart enough to get the door between them and she gets
            out the window, he gets out of that house. And he runs
            down, he gets in his van where he’s got it parked with
            the door facing the hill, so all he has to do is hop
            in, and he goes back to the dormitory very quickly, and
            he says, “Jeez [sic], I better get rid of all these
            things that are involved in this.” And he runs
            upstairs and he throws the box of bags in the trash in
            the common area bathroom, and the rest of the
            implements, too. The rest of the new implements bought
            on the 16th of May, three days before. Premeditation.
            Same place. Same time. Same condition. Consciousness
            of guilt. Proof of premeditated design to kill. And
            intent to kill. Is there any other intent here that is
            even reasonably inferable? Putting a bag over
            somebody’s head right before they get off the island?
            Was he just going over for one more exercise at
            control? One more exercise of dominance? I just want
            to get one last lick in before you go?

            Or was he instead going over there to keep her from
            going? Perhaps to put her body in different bags,
            throw her in the bay, pick up his boy at day care, and
            claim he didn’t know anything about it.
            The evidence is overwhelming. Attempted premeditated
            murder. Intent to kill. Not just a credibility
            contest.

      After deliberating for approximately eight hours over a two-

day period, the court members convicted appellant as charged.

      The Court of Criminal Appeals held that the military judge

erred by admitting the utility knife, masking tape, and gloves

because they were not sufficiently connected to appellant.           The

court below held, however, that the error was harmless.        The

Government does not contest that holding.        The court below did


                                      15
United States v. Alameda, No. 01-0534/AF


not address the admissibility of the testimony about appellant’s

silence at the time of his apprehension, or the trial counsel’s

argument that the silence was indicative of a consciousness of

guilt.

                                 Discussion

      Appellant now asserts that his right to remain silent under

the Fifth Amendment and Article 31 was violated when the trial

counsel elicited testimony from TSgt Moody about his post-

apprehension silence, and then argued that this silence reflected

appellant’s consciousness of guilt.         Appellant further asserts

that the military judge exacerbated the error when he advised the

members that appellant had no obligation to testify at trial, but

did not advise them that he had the right to remain silent when

he was apprehended.      Reply Brief on Behalf of Appellant at 9.

The Government does not concede error, but argues that the issue

was not preserved by a timely and specific objection, and that

any error was harmless beyond a reasonable doubt.         Final Brief on

Behalf of the United States at 9-10.

                                   Waiver
      Mil.R.Evid. 103(a), Manual for Courts-Martial, United States

(2000 ed.),2 provides that error “may not be predicated” on a

ruling admitting evidence “unless the ruling materially

prejudices a substantial right of a party,” and there was a

timely and specific objection.        Mil.R.Evid. 103(d) sets out the

plain error exception: “Nothing in this rule precludes taking


2
  All Manual provisions cited are identical to the ones in effect
at the time of appellant’s court-martial.



                                      16
United States v. Alameda, No. 01-0534/AF


notice of plain errors that materially prejudice substantial

rights although they were not brought to the attention of the

military judge.”

      When trial counsel first elicited the testimony from TSgt

Moody, it was not apparent that he intended to argue later that

appellant’s silence showed consciousness of guilt.      The military

judge summarily overruled defense counsel’s relevance objection,

without allowing either side to articulate reasons for or against

admitting the testimony, and without articulating any rationale

for admitting the evidence.       If the military judge had required

trial counsel to proffer a theory of relevance, the possible

implication of the Fifth Amendment might have been apparent much

earlier in the trial.      We hold that defense counsel’s objection

challenging the relevance of TSgt Moody’s testimony was

sufficient to preserve the issue of the admissibility of that

testimony in light of Mil.R.Evid. 304(h)(3).      We further hold

that defense counsel’s timely objection to trial counsel’s

argument was sufficient to preserve the constitutional and

statutory issues arising from trial counsel’s use of the evidence

as substantive proof of guilt.

                                 Relevance
      Paragraph 140a(4) of the Manual for Courts-Martial, United

States, 1969 (Rev. ed.), specifically recognized admissions by

silence.    It provided:

            If an imputation against a person comes to his
            attention under circumstances that would reasonably
            call for a denial by him of the accuracy of the
            imputation if the imputation was not true, a failure on
            his part to utter such a denial will support an
            inference that he thereby admitted the truth of the
            imputation.


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United States v. Alameda, No. 01-0534/AF



This provision has since been deleted, but “admissions by silence

continue to be recognized in both military and civilian federal

practice.”    United States v. Cook, 48 MJ 236, 240 (1998); see

also United States v. Stanley, 21 MJ 249, 250 (CMA 1986)(silence

considered an admission “under certain circumstances”).

      Mil.R.Evid. 304(h)(3) states when the inference may not be

drawn.   It provides:

            A person’s failure to deny an accusation of wrongdoing
            concerning an offense for which at the time of the
            alleged failure the person was under official
            investigation or was in confinement, arrest, or custody
            does not support an inference of an admission of the
            truth of the accusation.

See United States v. Colcol, 16 MJ 479, 484 n.4 (CMA 1983)
(prearrest silence usually inadmissible and not an act from which

guilt can be inferred).

      We review a military judge’s decision to admit evidence for

abuse of discretion.      If the military judge makes findings of

fact, we review the findings under a clearly-erroneous standard

of review.    We review conclusions of law de novo.      United States

v. Sullivan, 42 MJ 360, 363 (1995).
      In this case, the military judge made no findings of fact or

explicit conclusions of law.        Thus, we review his application of

the law de novo.

      TSgt Moody advised appellant that he was being apprehended

for an “alleged assault.”       Appellant had a history of domestic

violence, had been accused of assaulting his wife less that two

weeks earlier, and had been ordered to stay away from her because

of the incident.     Under these circumstances, his failure to deny

one more allegation of “alleged assault” does not support an


                                      18
United States v. Alameda, No. 01-0534/AF


inference of guilt.      Thus, we conclude that appellant’s lack of

response was not relevant.

      Finally, even if appellant’s silence constituted an

admission, it would admit only an “alleged assault,” not

attempted premeditated murder.        We hold that the military judge

erred by admitting the evidence of appellant’s silence as

substantive evidence of guilt.

                             Closing Argument

      The privilege against self-incrimination recognized in

Article 31(a), supra, is virtually identical to the privilege
under the Fifth Amendment.       Thus, our Fifth Amendment analysis

also applies to Article 31(a).

      In closing argument, the trial counsel was permitted to

argue, over defense objection, that appellant’s lack of response

when he was apprehended for an “alleged assault” reflected his

consciousness of guilt of premeditated murder.       Issues involving

argument referring to unlawful subject matter are reviewed de

novo as issues of law.      See 2 Steven Childress & Martha Davis,

Federal Standards of Review, § 11.23 (3d ed. 1999).
      The federal circuits distinguish between pre-arrest and

post-arrest silence.      They are divided on the question whether

the prosecution may argue that pre-arrest silence is evidence of

guilt.   However, the First, Sixth, Seventh, and Tenth Circuits,

constituting a majority of the circuits that have addressed the

issue, have held that use of pre-arrest silence as substantive

evidence of guilt violates the Fifth Amendment.       These circuits

maintain “that application of the privilege is not limited to

persons in custody or charged with a crime; it may also be


                                      19
United States v. Alameda, No. 01-0534/AF


asserted by a suspect who is questioned during the investigation

of a crime.”    Coppola v. Powell, 878 F.2d 1562, 1565 (1st Cir.

1989); see Combs v. Coyle, 205 F.3d 269, 282-83 (6th Cir.

2000)(citing Coppola, supra); United States v. Burson, 952 F.2d

1196, 1201 (10th Cir. 1991); United States ex rel. Savory v.

Lane, 832 F.2d 1011, 1017 (7th Cir. 1987) (summarizing the split

in the federal circuits and holding that comment on pre-arrest

silence violates Fifth Amendment).

       The Ninth Circuit has held that use of post-arrest, pre-

Miranda3 silence as substantive evidence of guilt violates the
Fifth Amendment.     United States v. Velarde-Gomez, 269 F.3d 1023,

1028 (9th Cir. 2001).     A lack of response or reaction to an

accusation is not “demeanor” evidence, but a failure to speak.

Id. at 1031.

       Mil.R.Evid. 304(h)(3) makes no distinction between pre-

arrest and post-arrest silence.        It applies to any person who

“was under official investigation or was in confinement, arrest,

or custody.”

       This case involves post-apprehension,4 pre-Miranda silence.
We conclude, based on the language of Mil.R.Evid. 304(h)(3) and

what we perceive to be the weight of authority in the federal

circuits, that the military judge committed constitutional error

by permitting the prosecution to introduce evidence of


3
    Miranda v. Arizona, 384 U.S. 436 (1966).
4
  Military cases use the term “apprehension” to mean the same
thing as “arrest” in civilian cases. This difference in
terminology is based on the definitions of “apprehension” and
“arrest” in Articles 7 and 9, Uniform Code of Military Justice
10 USC §§ 807 and 809, respectively.


                                      20
United States v. Alameda, No. 01-0534/AF


appellant’s post-apprehension silence as substantive evidence of

guilt, and to then comment on that evidence in closing argument.

                          Curative Instructions

      When a military judge instructs the members, the question

whether the content of the instruction is legally correct is

reviewed de novo.     See United States v. Quintanilla, 56 MJ 37, 83

(2001).

      When defense counsel objected to trial counsel’s argument

that appellant’s silence showed a consciousness of guilt, the

military judge instructed the members that appellant had “no

obligation to make any statement during the trial in his
defense.”    (Emphasis added.)      When defense counsel objected

again, the military judge instructed the members that “nothing

will be held against this accused because he did not say anything

in his defense.”     In our view, these instructions were off the

mark because they did not address the question whether any

adverse inference could be drawn from appellant’s silence at the

time of his apprehension.

      Instead of curing the error, the instructions may have
exacerbated it.     The instructions focused only on trial testimony

and failed to address appellant’s pretrial silence.        This

omission may have led the members to conclude that, while no

adverse inference could be drawn from appellant’s failure to

testify at trial, the members were permitted to draw an adverse

inference from appellant’s silence at the time of his

apprehension.     Accordingly, we conclude that the military judge’s

instruction did not cure the error and may have exacerbated it.




                                      21
United States v. Alameda, No. 01-0534/AF


                              Harmless Error

      This Court reviews de novo whether an error was harmless.

United States v. Grijalva, 55 MJ 223, 228 (2001).      We consider

the four following factors to evaluate prejudice from erroneous

evidentiary rulings:      “(1) the strength of the Government’s case,

(2) the strength of the defense case, (3) the materiality of the

evidence in question, and (4) the quality of the evidence in

question.”    United States v. Kerr, 51 MJ 401, 405 (1999)(citing

United States v. Weeks, 20 MJ 22, 25 (CMA 1985)).      We will apply
these factors to analyze the cumulative impact of the erroneous

admission of the masking tape, latex gloves, and utility knife,

as well as the erroneous admission of testimony about appellant’s

pretrial silence as substantive evidence of guilt.

      To analyze the impact of trial counsel’s impermissible

comment on appellant’s silence, we must first determine whether

this error is of constitutional magnitude.      For constitutional

error, we must be satisfied beyond a reasonable doubt that the

error was harmless.      Chapman v. California, 386 U.S. 18, 24

(1967).   For non-constitutional error, we must be satisfied that
“the judgment was not substantially swayed by the error.”

Kotteakos v. United States, 328 U.S. 750, 765 (1946).      If we are

not satisfied, or if we are “left in grave doubt, the conviction

cannot stand.”     Id.

      The Supreme Court has drawn a distinction between direct

review and collateral review in determining if impermissible

comment on pretrial silence was harmless.      The Supreme Court has

applied the Chapman standard to direct review, and the less

onerous Kotteakos standard to collateral review.      Brecht v.


                                      22
United States v. Alameda, No. 01-0534/AF


Abrahamson, 507 U.S. 619, 634-38 (1993).     Because this case is on

direct review, we apply the Chapman standard.

      Applying the four-pronged Weeks factors, we are satisfied

beyond a reasonable doubt that the errors were harmless with

respect to the two offenses on April 30.     Neither the irrelevant

evidence nor the inadmissible evidence of appellant’s silence

pertained to these offenses.

      We are likewise satisfied beyond a reasonable doubt with

respect to appellant’s conviction of violating the “stay away”

order on May 19.     Mrs. Alameda’s testimony was corroborated by

the witnesses who observed the scratches on her nose and

abrasions on her neck, the witnesses who observed appellant’s car

parked near the residence, TSgt Moody’s description of the open

bedroom window with the blinds hanging out, and the testimony of

1Lt Haussler and Melanie Young about Mrs. Alameda’s demeanor

immediately after her confrontation with appellant.

      However, we are not persuaded beyond a reasonable doubt that

the errors were harmless with respect the court members’ finding

that appellant acted with a premeditated design to kill Mrs.

Alameda.    At trial, the military judge correctly instructed the

members that the elements of attempted premeditated murder were:

            (1) That at or near Kadena Air Base, Okinawa, Japan, on
            or about 19 May 1998, the accused did certain acts,
            that is: attempt to murder Marla D. Alameda by means of
            suffocating and choking her with his hands and a
            plastic bag;

            (2) That such acts were done with the specific intent
            to kill Marla D. Alameda; that is, to kill without
            justification or excuse;

            (3) That such acts amount to more that mere
            preparation; that is, they were a substantial step and



                                      23
United States v. Alameda, No. 01-0534/AF


            a direct movement toward the unlawful killing of Marla
            D. Alameda;

            (4) That such acts apparently tended to bring about the
            commission of the offense of premeditated murder; that
            is, the acts apparently would have resulted in the
            actual commission of the offense of premeditated murder
            except for an unexpected intervening circumstance which
            prevented completion of that offense; and

            (5) That at the time the accused committed the acts
            alleged, he had the premeditated design to kill Marla
            D. Alameda.

See Paragraphs 4b and 43b(1), Part IV, Manual, supra.    He also

instructed them on the elements of the following lesser-included

offenses: attempted unpremeditated murder, attempted voluntary

manslaughter, aggravated assault, and assault consummated by a

battery.    See Paragraphs 43b(2), 44b(1), 54b(4)(a), and 54b(2),
Part IV, Manual, supra, respectively.

      At trial, the prosecution’s proof of the elements of

premeditation and intent to kill consisted of the following:

     (1) Mrs. Alameda’s testimony that appellant removed an
unused garbage bag from his pocket and attempted to place it over
her head;

     (2) the unopened roll of masking tape, a utility knife in
its original package, and an unopened package of latex gloves,
found in a common dormitory bathroom;
     (3) a box of Hefty garbage bags with one bag removed and
appellant’s fingerprints on the box; and

     (4) TSgt Moody’s testimony regarding appellant’s silence at
the time of his apprehension.

      The court below held that the masking tape, utility knife,

and latex gloves were not sufficiently connected to appellant to

be relevant.    The Government has not contested that holding, and

we are satisfied that it is not “clearly erroneous,” nor would it

“‘work a manifest injustice’ if the parties were bound by it.”

Accordingly, it is the law of the case.    United States v. Doss,


                                      24
United States v. Alameda, No. 01-0534/AF


___ MJ (7 n.*) (2002)(citing Christianson v. Colt Industries

Operating Corp., 486 U.S. 800, 817 (1988)).

      In light of our holding that appellant’s silence was not

admissible proof of the substantive offense, the only remaining

proof of appellant’s premeditated attempt to kill was the box of

Hefty garbage bags bearing appellant’s fingerprints, Mrs.

Alameda’s testimony that appellant tried to put a Hefty garbage

bag over her head, and the abrasions on Mrs. Alameda’s neck.

      Mrs. Alameda’s testimony was not entirely consistent with an

attempted premeditated murder.        She testified that she became

hysterical when appellant came to the house, and that he then sat

down on a couch and wanted to talk.        Mrs. Alameda testified that

he tried to calm her down.       She also testified that after she ran

into the bedroom and told appellant that she would talk to him,

he stopped moving toward her and began walking toward the living

room, thereby allowing her to escape through the bedroom window.

      Likewise, the only remaining admissible evidence of intent

to kill was the same box of Hefty garbage bags bearing

appellant’s fingerprints, the abrasions on Mrs. Alameda’s neck,

and her testimony.      Her testimony included both a statement that

appellant sought to strangle or suffocate her with a garbage bag,

as well as a statement that appellant subsequently agreed to return

to the living room to talk, at which time she made good her

escape.

      After considering the admissible evidence of premeditation

and intent to kill, we are not satisfied beyond a reasonable

doubt that the members would have convicted appellant of

attempted premeditated murder, the lesser-included offenses of


                                      25
United States v. Alameda, No. 01-0534/AF


attempted unpremeditated murder or attempted voluntary

manslaughter, without (1) the testimony about appellant’s

silence, (2) the masking tape, the latex gloves, and the utility

knife, (3) the improper comment of trial counsel on appellant’s

silence, and (4) the instruction of the military judge that may

have exacerbated the impact of trial counsel’s argument.

Accordingly, we must reverse the lower court’s decision with

respect to Charge I and its specification, alleging attempted

premeditated murder.

      The court below concluded that admission of irrelevant

evidence (the masking tape, latex gloves, and utility knife) was

harmless beyond a reasonable doubt with respect to the charge of

attempted premeditated murder.        However, that court has not

considered whether the cumulative effect of that error, combined

with the errors of constitutional magnitude found by this Court,

were harmless beyond a reasonable doubt with respect to the

lesser-included offenses of aggravated assault or assault

consummated by a battery.       Accordingly, we conclude that a remand

for further review under Article 66(c), UCMJ, 10 USC § 866(c), is

appropriate.

                                  Decision
      The decision of the United States Air Force Court of

Criminal Appeals is reversed with respect to Charge I and its

specification and as to the sentence.        In all other respects, the

decision below is affirmed.       The findings of guilty of Charge I

and its specification and the sentence are set aside.        The record

of trial is returned to the Judge Advocate General of the Air

Force for remand to the Court of Criminal Appeals.        That court


                                      26
United States v. Alameda, No. 01-0534/AF


will review the record to determine if the errors were harmless

beyond a reasonable doubt with respect to the lesser-included

offenses that do not contain elements of premeditation or intent

to kill, i.e., aggravated assault and assault consummated by a

battery; and whether the remaining evidence is factually and

legally sufficient to support a conviction of aggravated assault

or assault consummated by a battery.       The court may reassess the

sentence or order a sentence rehearing.      As an alternative to

further review of the record with respect to the lesser-included

offenses of Charge I and its specification, the court may order a

rehearing on the charge of attempted premeditated murder and the

sentence.    Thereafter, Article 67, UCMJ, 10 USC § 867, will

apply.




                                      27
United States v. Alameda, No. 01-0534/AF




     EFFRON, Judge (concurring in part and dissenting in part):

     In the present case, trial counsel elicited testimony

concerning appellant’s post-apprehension silence, and then asked

the court-martial members to view appellant’s silence as

reflecting consciousness of guilt.   I agree with the majority's

determination that trial counsel’s comments violated the

protections against self-incrimination in the Fifth Amendment,

U.S. Const. amend. V, and Mil.R.Evid. 304(h)(3), Manual for

Courts-Martial, United States (2000 ed.), and that the comments

were prejudicial with respect to the charge of attempted

premeditated murder.   I respectfully disagree with the

majority’s suggestion that this error may have been harmless

with respect to lesser included offenses.

     In the face of such a constitutional violation, the burden

is on the Government to demonstrate that the error was harmless

beyond a reasonable doubt.   See ___ MJ at (23) (citing Chapman

v. California, 386 U.S. 18, 24 (1967)).    Under Chapman, an

appellate court must determine “whether there is a reasonable

possibility that the evidence complained of might have

contributed to the conviction.”   Chapman, 386 U.S. at 23.

     The record of trial demonstrates that the Government has

failed to show that the error was harmless beyond a reasonable

doubt.   The testimony concerning appellant’s silence established
United States v. Alameda, No. 01-0534/AF


that appellant did not respond when law enforcement officials

informed appellant that he was being arrested for an “alleged

assault.”   Trial counsel’s subsequent argument that appellant’s

silence indicated “consciousness of guilt” encouraged the

members to infer guilt on the grounds that appellant’s silence

amounted to a confession that he had attacked his wife on the

day in question.   Given the powerful nature of such evidence,

the Government faces a very high hurdle in terms of

demonstrating that the error was harmless beyond a reasonable

doubt.   In this case, the Government’s challenge is made all the

more difficult by the military judge’s comments.   Instead of

giving a proper curative instruction, the military judge

validated trial counsel’s argument by opining that it was a

“fair comment on the state of the evidence.”

     The prejudicial impact of the error is underscored by the

fact that trial counsel did not limit his argument concerning

“consciousness of guilt” to the element of intent.    The improper

argument was made while trial counsel was discussing appellant’s

opportunity to commit the attack on his wife.   It was not

restricted to a demonstration of intent, but was presented to

the members as an admission that appellant attacked his wife on

May 19, 1998.   Given the breadth of the argument, the

prejudicial effect is not limited to the offenses involving




                                 2
United States v. Alameda, No. 01-0534/AF


intent to kill, but extends to all offenses arising from the

alleged attack.

      Excluding evidence of appellant’s silence and the other

evidence determined to be inadmissible by the Court of Criminal

Appeals, the only remaining evidence of guilt consisted of the

testimony of appellant’s wife that he tried to strangle her with

a Hefty garbage bag, a box of Hefty garbage bags with

appellant’s fingerprints, and abrasions on Mrs. Alameda’s neck.

See ___ MJ at (26).   The issue in this case is not whether such

evidence would be adequate to establish the legal sufficiency of

a conviction, see Jackson v. Virginia, 443 U.S. 307, 319 (1979),

but whether there is a reasonable possibility that the error

“might have contributed to the conviction.” Chapman, 386 U.S. at

23.   In the present case, there is a substantial possibility

that the members viewed trial counsel’s assertion -- that the

evidence demonstrated appellant’s consciousness of guilt -- as

substantially bolstering the credibility of the evidence against

him, particularly the critical testimony from his wife.    The

prejudicial impact was compounded by the comments from the

military judge which tended to validate trial counsel’s

argument.   “Under these circumstances, it is completely

impossible for us to say that the [Government] has demonstrated,

beyond a reasonable doubt, that the [trial counsel’s] comments

and the trial judge’s instruction did not contribute to


                                 3
United States v. Alameda, No. 01-0534/AF


[appellant’s] conviction.”   Id. at 26.   We should set aside the

findings with respect to Charge I and authorize a rehearing.




                                 4
United States v. Alameda, Jr., No 01-0534/AF


     CRAWFORD, Chief Judge (dissenting):

     I dissent because: (1) trial defense counsel made no

specific objection; (2) there was no Fifth Amendment, U.S.

Const. amend. V, violation; (3) there was no Article 31, Uniform

Code of Military Justice (UCMJ), 10 USC § 831, violation; and

(4) the evidence of appellant’s intent to kill is overwhelming,

making any error harmless beyond a reasonable doubt.

                                FACTS

     On May 19, 1998, appellant attempted to kill his wife,

Marla Alameda.   His acts are corroborated not only by several

items of physical evidence, but also by the testimony of

numerous witnesses.   From 1991 until the date of the attempted

murder, appellant abused his wife both physically and mentally.

Appellant was a jealous, suspicious, and controlling individual.

The physical and mental abuse was such that Mrs. Alameda had

previously been medically evacuated from Japan to the United

States.

    On April 30, 1998, while his wife was asleep, appellant

scrutinized his wife’s chat room messages that she had saved on

her computer.    He found a message that implied that a person she

chatted with would soon be visiting Japan where they lived.

Appellant woke her up and confronted her.   He demanded she

explain what happened, and became so enraged that he threw the
United States v. Alameda, Jr., No 01-0534/AF


computer off the desk, ripped the phone off the wall, and then

assaulted her, leaving her bruised, shaken, and scared.    He told

her, “If you screw me, you better put me in jail or I will kill

you.”   Appellant eventually left for work.

    Based on moral and physical support from her friends, she

reported this assault to appellant’s commander.    As a result,

appellant was ordered out of their on-base quarters and put in a

dormitory room.    Further, he was given a direct order, both

verbally and in writing, not to have any contact with his wife

and son.    An early return of dependents (ERD) package was

initiated.    Despite appellant’s refusal to sign the required

papers, the command processed the action.

    On May 19, Mrs. Alameda called appellant’s squadron to

obtain money for groceries and was told that someone would

deliver the money that day.    When informed that his wife needed

money, appellant refused to give her any cash.    He said, “I will

go buy her the groceries and I will deliver them to the house

myself.”    Because of the no contact order, two escorts

accompanied him when he delivered the groceries to the house.

He then inspected each room.    Finding condoms in the bedroom, he

became very upset.    Appellant left the house with the escorts

and then told his squadron that he was going to speak with the

chaplain.




                                  2
United States v. Alameda, Jr., No 01-0534/AF


     When his wife returned home from work, she noticed the

groceries had been delivered and that various personal items

were moved.      She was upset and called the unit commander, First

Lieutenant (1Lt) Deborah Haussler, who calmed her down and

reminded her that the ERD package would be expedited.             1Lt

Haussler asked her to come to the unit to sign the ERD paperwork

at 3:30   P.M.

    Five or ten minutes later, Mrs. Alameda heard the doorbell

ring and opened the door.        It was appellant.      She stood there

frozen in terror and panic.        Appellant pushed his way into the

house and began yelling and screaming.            He wrestled her from

room to room and tried to suffocate her, first with his hands

and then by using a Hefty garbage bag.            Before he was able to

put the garbage bag over her head, she was able to escape to the

bedroom and lock the door.        She climbed out of a window, went to

a neighbor’s house, and called for help.            This led to the charge

of attempted premeditated murder.

    During the opening statement, trial defense counsel admitted

that the fight on April 30 occurred, but denied appellant had

anything to do with the assault on May 19.            In support of this

contention, he argued that appellant visited the chaplain’s

office between 2:00     P.M.   and 3:30   P.M.   on May 19.   The reason

appellant visited the chaplain was because he had found condoms

in the bedroom of his home when he delivered the groceries.



                                      3
United States v. Alameda, Jr., No 01-0534/AF


Appellant also called a friend from the chapel, at 2:09    P.M.,

during the course of his counseling session.     After visiting the

chaplain, appellant went back to the barracks, unloaded his van,

and was sitting on the barracks porch when the police arrived at

4:00   P.M.

       Appellant’s alibi defense was countered by the Government

with the testimony of a neighbor, who identified appellant’s van

near his house around 3:30   P.M.   Another witness, Ms. Melanie

Young, the Alamedas' next door neighbor, heard screaming

followed by frantic pounding on her front door, as well as

pounding on another neighbor’s door shortly after 3:00    P.M.   Ms.

Young found an hysterical Mrs. Alameda knocking on doors crying

“[h]elp me.”    Ms. Young saw bruising and redness on various

parts of the victim’s body, as well as the open window through

which the victim escaped from her bedroom.     Mrs. Alameda told

Ms. Young that appellant had come home, knocked on the door, and

then tried to kill her by choking her.

       The Government’s theory of the case was that appellant

intended to kill his wife without being caught.     Using the

chaplain’s counseling session as an alibi was a part of

appellant’s scheme.    Another means utilized by appellant for




                                    4
United States v. Alameda, Jr., No 01-0534/AF


avoiding detection was the use of latex gloves to preclude

fingerprinting and masking tape to muffle any sounds.1

      Appellant was charged with attempting to kill his wife.

Both before and after his arrest, appellant did not make any

statement such as “I could not have done that,” “I wasn’t

there,” or ask, “Why are you arresting me?”           During his

questioning of Technical Sergeant (TSgt) Moody, a member of the

Air Force Security Forces (Security Forces), the assistant trial

counsel conducted the following direct examination:

      Q.   So, after your back-up arrived, what did you do next?

      A.   After my back-up arrived, I got out of the vehicle
           and I pretty much approached Airman Alameda. In
           route to approaching Airman Alameda, I came by his
           van and I just kind of rubbed my hand across his
           van to try and determine whether or not the van had
           just been operated. I was unable to tell because
           the van was hot and it was a hot day out and I was
           unable to tell whether the motor had just been
           running because the motor is encased.

           And so, I approached Airman Alameda and asked him if he
           was Airman Alameda, and he said that he was. The
           gentleman who was next to him, I asked him if he could
           just move out of the way. I asked Airman Alameda for an
           ID card to prove that he was Airman Alameda. He did show
           me an ID card.

      Q.   Did he ask any other questions during this time?

      A.   No.



1
  This Court is not bound by the lower court’s decision that the utility
knife, masking tape, and latex gloves were not relevant evidence. See United
States v. Walker, ___ MJ ___ (2002) (Sullivan, S.J., joined by Crawford, C.J.,
dissenting). Even without this evidence, there is substantial evidence of
the premeditated intent to kill.



                                      5
United States v. Alameda, Jr., No 01-0534/AF


     Q.   Did he say anything, like "What do you want?   What
          are you here for?" or anything like that?

     A. No.

     DC: Objection, Your Honor.   Irrelevant.

     MJ: Overruled.

     [Questions by assistant trial counsel]

     Q.   Did he make any such statement as that?

     A.   No, sir, he did not.

Drawing from this colloquy, appellant states:

    Thus, without question, the prosecutor elicited
    testimony from the arresting officer, a member of
    the Air Force Security Forces, that [appellant]
    remained silent after he was placed under arrest.
    The prosecutor later emphasized that fact in
    argument as an indication of consciousness of
    guilt.

        Although an entirely appropriate objection was
    made, it was overruled and the trial counsel
    continued.

Brief on Behalf of Appellant at 7 (emphasis in original).

However, several key factors undercut appellant's argument.

    All questions and answers transpiring prior to appellant's

relevance objection concerned appellant's silence before he was

placed under arrest.   Clearly, the approaching Security Forces

officer said nothing to solicit a response from appellant other

than to ask for his identification card.   In fact, there is no

evidence in the record of trial that anyone questioned appellant

outside his dormitory that evening.




                                  6
United States v. Alameda, Jr., No 01-0534/AF


    The only matter appellant objected to, based on relevance,

was the assistant trial counsel's questions concerning

appellant's reaction upon seeing the Security Forces officer.

It was only after the last question and answer quoted above that

TSgt Moody arguably placed appellant under arrest.      The

testimony of TSgt Moody on direct examination continued as

follows:

     Q.    After you verified it was, in fact, Senior Airman
           Tedio Alameda, what did you do next?

     A.    I informed him that he was going to be apprehended for
           an alleged assault.

     Q.    And what did he say or do then?

     A.    He didn't say anything. He didn't do anything. He
           had a look like [witness stared ahead] and that was
           it.

     Q.    Did he ask you why he was being arrested?

     A.    No he did not.

     The above questions and answers drew no objection from

trial defense counsel.      The assistant trial counsel continued

his questioning:

     Q.    (Counsel).   Did he act like he knew what was going
           on?

     DC: Objection, Your Honor.     Calls for speculation.
         (Emphasis added.)

     MJ: Again, you can ask him what he observed, but you
         can’t ask him for those types of conclusion of
         whether or not he did understand.




                                    7
United States v. Alameda, Jr., No 01-0534/AF


    Q. So, again, when you asked Airman Alameda for his ID
       card, did he say anything?

     A. No, sir.

    Q. And when you told him that he was being apprehended, did
       he say anything?

     A. He said --

     DC: Objection. Asked and answered, Your Honor.
         (Emphasis added.)

     MJ: I'll allow it, as long as you move on.

    Q. Yes, Your Honor.



    Q. How would you describe Airman Alameda's reaction
       after you told him he was being placed under
       arrest?

    A. Once again, just as in the previous situation where
       I had made contact with Airman Alameda, he didn't
       have much of a reaction or much emotion at all.

    Trial defense counsel raised two objections.     The first was

"speculation."     The military judge essentially sustained that

objection by counseling the assistant trial counsel not to ask

questions about what appellant's thoughts were.     However, for

purposes of the issues he now raises on appeal, appellant's

objection was off the mark.    Trial defense counsel did not

comment on the judge's ruling because the military judge ruled

appropriately on the defense objection.

    The second objection, "asked and answered," occurred after

the assistant trial counsel asked TSgt Moody if appellant said




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United States v. Alameda, Jr., No 01-0534/AF


anything while he was being arrested.            The military judge

responded by telling the assistant trial counsel to move along.

The judge’s ruling granted relief to the defense in response to

the specifically raised objection.           TSgt Moody responded,

appellant "didn't have much of a reaction or much emotion at

all."     He did not comment directly on what appellant said or did

not say.

        In a lengthy closing argument, the Government mentioned that

when the Special Forces came, the defendant never asked why they

were present.       Additionally, the Government made reference to

the items found -- the rubber gloves, the knife and tape -- as

evidence of consciousness of guilt and a premeditated intent to

murder.

                                      DISCUSSION

                                   MIL.R.EVID. 103

        Mil.R.Evid. 103(a)(1), Manual for Courts-Martial, United

States (2000 ed.), requires a “timely objection ... stating the

specific ground of objection, if the specific ground was not

apparent from the context....”          “Further, [t]he burden is placed

on the party opponent [to make the objection], not the judge.”2

Where the evidence is otherwise admissible, it is not the

judge’s role to require a proffer to show that it is admissible.




2
    John W. Strong, 1 McCormick On Evidence § 52 at 220 (5th ed. 1999).



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United States v. Alameda, Jr., No 01-0534/AF


Likewise, a general objection that the evidence is irrelevant

will not suffice.3     Furthermore, the objection only preserves the

specific ground named.      Thus, even though there was a good but

unnamed objection, that objection will not be considered on

appeal.4

     In this instance, the only objection made to appellant’s

pre-arrest silence was relevance.         This objection did not

preserve any potential objection to the evidence pursuant to the

strictures of Article 31, the Fifth Amendment, or Mil.R.Evid.

304(h)(3).    Trial defense counsel’s other objections

(“speculation” and “asked and answered”), likewise did not

preserve the issues now addressed.

                               CONTRADICTION

      During the trial, from the opening statement through trial

defense counsel’s examination of the witnesses, the defense’s




3
  United States v. Sandini, 803 F.2d 123, 126-27 (3d Cir. 1986). See United
States v. Adkins, 196 F.3d 1112, 1116 n.3 (10th Cir. 1999)(a nonspecific
objection does not preserve a Rule 403 objection); United States v. Wilson,
966 F.2d 243, 245-46 (7th Cir. 1992)(failure to cite Rule 403, or mention the
prejudicial effect of the evidence, constitutes waiver); United States v.
Mejia, 909 F.2d 242, 246 (7th Cir. 1990)(relevance objection does not
preserve Rule 403 or Rule 404(b) objection); United States v. Gomez-Norena,
908 F.2d 497, 500 (9th Cir. 1990)(only making the correct specific objection
preserves issue for appeal); Bryant v. Consolidated Rail Corp., 672 F.2d 217,
220 n.4 (1st Cir. 1982)(relevance objection does not preserve ruling under
Rule 404).
4
  United States v. Gomez-Norena, supra. See also United States v. Brewer, 43
MJ 43, 47 n.2 (1995)(failure to make specific objection constitutes waiver
absent plain error).



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United States v. Alameda, Jr., No 01-0534/AF


theory of the case was alibi;5 appellant was with the chaplain

and it would have been physically impossible for him to attempt

to kill his wife.     Appellant’s silence at the time of arrest

undermines the defense theory.        His silence confirms both the

direct and circumstantial evidence that he committed the

offense.

                     FIFTH AMENDMENT and ARTICLE 31

      The Fifth Amendment, supra, states:         “No person ... shall

be compelled in any criminal case to be a witness against

himself....”    Likewise, Article 31(d) prohibits the admission of

statements obtained as a result of coercion or unlawful

inducement.    Thus, at trial, the prosecution may not use the

evidence that appellant stood mute.         Miranda v. Arizona, 384

U.S. 436, 468 n.37 (1966).

      Setting aside demeanor evidence at the time of arrest,

silence has been recognized as evidence of guilt for hundreds of

years.   “An early exposition of the rule is the maxim of Pope

Boniface VIII:     “Qui tacet, consentire videtur,” or “He who is

silent shows agreement.” 5 Pope Boniface VIII, Book of

Decretals, ch. 12 § 43 (c. 1300).         United States v. Cook,



5
  See, e.g., Shafer v. South Carolina, 532 U.S. 36 (2001)(prosecutor’s
closing argument that Shafer and his two accomplices “might come back” opened
the door to show future dangerousness and required an instruction of life
without parole); United States v. Franklin, 35 MJ 311, 317 (CMA 1992)(trial
defense counsel’s opening statement opened the door to the issue of intent).
See also United States v. Turner, 39 MJ 259, 263 n.2, 266-67 (CMA 1994).



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United States v. Alameda, Jr., No 01-0534/AF


48 MJ 236, 241 n.l (1998)(Crawford, J., dissenting).            Certainly

silence is ambiguous.      But many courts have recognized that

absent a Miranda warning, silence may be admitted.

       The Supreme Court has addressed the issue of pre-arrest

silence and post-arrest silence, absent Miranda warnings.             While

federal courts are split on the admission of silence as

substantive evidence,6 some have allowed prosecutors to comment

on such evidence.     In Jenkins v. Anderson, 447 U.S. 231, 238,

240 (1980), and Fletcher v. Weir, 455 U.S. 603, 607 (1982)(per

curiam), the Court held that absent Miranda warnings, pre-arrest

or post-arrest silence may be used to impeach a defendant.

       In Jenkins, the defendant, who was indicted for murder,

claimed that he acted in self-defense.         Jenkins, 447 U.S. at

233.    At trial, the prosecution cross-examined Jenkins about his

failure to explain his version of events to the police for at

least two weeks.     Id.   The prosecutor also referred to the

defendant’s previous silence in his closing argument.            Id. at

234.    On appeal the Supreme Court held7 that the Fifth Amendment,

supra, was not violated by the prosecutor’s use of the


6
  Three circuits have indicated that silence as substantive evidence of guilt
is admissible in the prosecution’s case-in-chief. See, e.g., United States
v. Oplinger, 150 F.3d 1061 (9th Cir. 1998); United States v. Zanabria, 74
F.3d 590 (5th Cir. 1996); United States v. Rivera, 944 F.2d 1563 (11th Cir.
1991). Four have concluded otherwise. See, e.g., Combs v. Coyle, 205 F.3d
269, 283 (6th Cir. 2000); United States v. Burson, 952 F.2d 1196 (10th Cir.
1991); Coppola v. Powell, 878 F.2d 1562 (1st Cir. 1989); United States ex
rel. Savory v. Lane, 832 F.2d 1011 (7th Cir. 1987).
7
  Justice Powell wrote the majority opinion. Justice Stevens concurred in the
judgment and Justices Brennan and Marshall dissented.



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United States v. Alameda, Jr., No 01-0534/AF


defendant’s pre-arrest silence to impeach his credibility.         Id.

at 238.    The Court expressly noted that it did “not consider

whether or under what circumstances prearrest silence may be

protected by the Fifth Amendment.”      Id. at 236 n.2.

    Justice Stevens, concurring in the judgment, commented that

he “would reject [the defendant’s] Fifth Amendment claim because

the privilege against compulsory self-incrimination is simply

irrelevant to a citizen’s decision to remain silent when he is

under no official compulsion to speak.”      Id. at 241 (footnote

omitted).    Likewise, Justice Stevens noted that under his

approach, “assuming relevance, the evidence could have been used

not only for impeachment[,] but also in rebuttal even had

petitioner not taken the stand.”      Id. at 244 n.7.   In essence,

this evidence could be used to rebut Jenkins’ self-defense

theory.

    The Court addressed post-arrest silence in Fletcher v. Weir,

supra.    Following Jenkins, it held that post-arrest silence,

absent Miranda warnings, may be used to impeach the defendant at

trial.    Fletcher, 455 U.S. at 607.    In both cases the Court

noted that Miranda warnings, that might have induced silence,

were not given.    While the Jenkins and Fletcher decisions permit

pre-arrest and post-arrest silence, absent a Miranda warning, to

be used for impeachment, they did not address the use of such

silence as substantive evidence.      Nonetheless, the Justices’



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United States v. Alameda, Jr., No 01-0534/AF


rationale in these opinions, coupled with the Fifth Amendment’s

history, would permit the Government to use appellant’s silence

under the facts of this case.

    While the federal courts are split on whether to permit use

of pre-arrest silence and post-arrest silence as substantive

evidence in the absence of rights warnings, the courts have

permitted the prosecution to argue inferences arising from an

individual’s conduct at the time of arrest.       In United States v.

Thompson, 82 F.3d 849 (9th Cir. 1996), the court permitted the

prosecutor to comment on the appellant’s silence at the time of his

arrest.   Id. at 854.   During a drug transaction in his house, the

appellant killed a man with muffled shots.       When the police

arrived, the appellant answered some police questions but

refused to answer others because he said he was scared and

wanted to talk to a lawyer.   Id.     The detective who interviewed

the appellant testified that when he responds to this kind of

call he normally asks the people to indicate what happened, and

they “are more than eager to tell....”     Id.

     In Thompson, the prosecutor made the following comment

concerning the defendant’s refusal to answer police questions

before his arrest:

               I am not going to make a big deal out of Mr.
           Thompson’s response when the police come [sic] to
           the door following this shooting. I’m not going
           to make a big deal about it at all. But you got
           to admit, it’s a little strange under the



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United States v. Alameda, Jr., No 01-0534/AF


            circumstance, have the police come in there, and
            the first thing they’re going to say is, “What
            happened?” “I want a lawyer.” I mean, that’s
            strange. That’s not the way people in
            circumstances that are legitimate are going to
            react. They would probably be inclined to tell
            the cop what happened; “This guy broke into my
            apartment.” None of that happened. But then
            again, this is Mr. Thompson.

Id. at n.7.    After noting the split in federal courts on the

issue of silence as substantive evidence, the Ninth Circuit held

that the prosecutor’s comment was not plain error.    Id. at 856

(citing United States v. Davenport, 929 F.2d 1169, 1174-75 (7th

Cir. 1991)).

     In the case before us, TSgt Moody testified that appellant

did not say anything like “What do you want?”, or “What are you

here for?”    However, TSgt Moody did describe appellant’s

demeanor.    Asked if he reacted in any way, the witness indicated

that appellant “stared [straight] ahead.”

     When an individual has received rights warnings and told of

the right to remain silent, silence becomes an intentional act.

It is the exercise of one’s right.    But the privilege against

self-incrimination “protects an accused only from being

compelled to testify against himself, or otherwise provide ...

evidence of a testimonial or communicative nature....”

Schmerber v. California, 384 U.S. 757, 761 (1966).    Neither the

Fifth Amendment nor Article 31 protects an individual from

giving physical evidence such as handwriting, voice exemplars,



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United States v. Alameda, Jr., No 01-0534/AF


or demonstrating one’s sobriety.       See Pennsylvania v. Muniz, 496

U.S. 582, 591 (1990).

     Appellant was not an individual who was relaxed or

unemotional.   His body language of looking straight ahead, when

confronted, was evidence that the court members could consider

and could be commented upon by the prosecution.      Such evidence

is neither testimonial nor communicative in nature.      While the

judge had the discretion to exclude the evidence, especially

after a proper objection, there was absolutely no abuse of

discretion in failing to do so.

     The trial counsel’s comments in this case were a fair

response to the trial defense counsel’s opening statement and

examination of the witnesses.   United States v. Shoff, 151 F.3d

889, 893 (8th Cir. 1998).   Additionally, in an argument that

went more than 30 minutes, trial counsel’s statement that

appellant made no explanation and stared straight ahead, was

only a passing reference not requiring a reversal of the

conviction.    See, e.g., United States v. Sidwell, 51 MJ 262, 265

(1999).

     Certainly, appellant’s reaction undercuts the defense’s

theory throughout the case that appellant had nothing to hide.

In fact, appellant recognized the impact of his silence because

the next day he told his escorts he was at the chaplain’s office

at the time of the offense, and wondered why he was being placed



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United States v. Alameda, Jr., No 01-0534/AF


in pretrial confinement.   He could have said that one day

earlier, but did not.

                           HARMLESS ERROR

    The evidence in this case is overwhelming.    The majority

recognizes that appellant may very well be guilty of a lesser-

included offense, but improperly assumes the lower court’s

Article 66(c), UCMJ, 10 USC § 866(c), role and makes findings

that are equivalent to findings of fact regarding premeditation

and appellant’s intent to kill.    The evidence admitted at trial

of appellant’s intent to kill his wife is far greater than the

majority opinion indicates.   I am particularly disturbed by the

majority’s failure to consider appellant placing a Hefty garbage

bag over the victim’s head and the use of deadly force with a

butcher knife to intimidate his wife on a prior occasion.    The

majority’s view indicates that if a person assaults and wounds a

victim on one occasion, because the perpetrator intended to

assault and wound that victim, this same perpetrator could not

be convicted of attempting to murder the same victim at a later

date, even though that was the perpetrator’s specific intent.

Even if one were to accept the majority’s view that the evidence

of premeditation was inadmissible, there is more than sufficient

evidence that appellant intended to kill his wife.   The Court of

Criminal Appeals should be able to consider unpremeditated

murder and manslaughter as lesser-included offenses.



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United States v. Alameda, Jr., No 01-0534/AF


                           CONCLUSION

    For all of these reasons, I respectfully dissent.




                               18
