

   
   
   
   U.S. v. Taylor



UNITED STATES, Appellee
v.
Curtis A. TAYLOR, Private First Class
U.S. Marine Corps, Appellant
 
No. 98-1140
Crim. App. No. 97-0508
 
United States Court of Appeals for
the Armed Forces
Argued October 28, 1999
Decided July 19, 2000
COX, S.J., delivered the opinion
of the Court, in which CRAWFORD, C.J., and SULLIVAN, J., joined. GIERKE,
J., filed an opinion concurring in part and dissenting in part, in which
EFFRON, J., joined.

Counsel
For Appellant: Lieutenant Dale O.
Harris, JAGC, USNR (argued).
For Appellee: Lieutenant Margaret
E. Jolly, JAGC, USNR (argued); Colonel Kevin M. Sandkuhler,
USMC, Commander Eugene E. Irvin, JAGC, USN, and Lieutenant Timothy
E. Curley, JAGC, USNR (on brief); Lieutenant Commander JoAnn W.
Melesky, JAGC, USN.
Military Judge: W. P. Hollerich
 
 


This opinion
is subject to editorial correction before publication.


Senior Judge COX delivered the opinion
of the Court.
The charge of attempted murder1
in the instant case arose on June 18, 1995, in a Marine barracks located
at Camp Pendleton, California. The granted issues concern the prosecutions
reference in its opening statement to inadmissible evidence about gang-related
clothing, evidence concerning previous misconduct, and testimony concerning
appellants confession.2 The
Court of Criminal Appeals summarized the circumstances leading to the charges
in this case as follows:



On the evening of Saturday, 17 June
1995, several Marines gathered in a barracks room to drink and socialize
before they proceeded to the enlisted club. Among the Marines present were
the appellant and LCpl Neal. LCpl Neal took exception to what he viewed
as the appellants unjustified boasting about his prior involvement in
gangs. He confronted the appellant, calling him a joke and a liar. The
two Marines nearly came to blows. However, calmer heads prevailed and pulled
the two apart. In a statement the appellant made to the Naval Criminal
Investigative Service (NCIS), he admitted that he was so enraged that he
formed the intent to kill LCpl Neal.3
When the appellant awoke the next morning,
he was still so angry that he decided to kill LCpl Neal by stabbing him.
After dressing, the appellant removed a Gerber knife from its sheath and
placed it in his right pants pocket. The appellant then walked to the room
where LCpl Neal was hanging around, waited in the doorway, and, as LCpl
Neal left the room for breakfast, stuck the knife into his left side just
below the rib cage.
The appellant stated that he stabbed
LCpl Neal with "a lot of force" because he "did not want him to be able
to defend himself." Believing that the appellant had only "weakly" punched
him, LCpl Neal asked: "Is that all youve got?" When appellant pulled the
knife out, LCpl Neal realized he had been stabbed; he ran to the bathroom
to treat the wound. The appellant followed him and kicked at the door.
Other Marines reported the stabbing, confronted the appellant, and eventually
disarmed him.
LCpl Neal was rushed to the hospital
with a 1-1/2" stab wound in his abdomen. The Navy surgeon operated for
over 2 hours, repairing several perforations in LCpl Neals small intestines.
The doctor testified that, without this surgery, LCpl Neal would have suffered
"overwhelming infection." Additionally, had the knife entered his body
a few inches higher or to the right, it could well have penetrated a vital
organ and killed LCpl Neal outright. Fortunately, LCpl Neal recovered fully
from the wound.



Unpub. op. at 2-3.
Appellant was then taken into custody
and transported to the NCIS office. After waiving his rights under Article
31(b), UCMJ, 10 USC § 831(b), appellant was interviewed by NCIS Agents
Sean Sweeney and Patrick Hurt. Both NCIS agents were present during the
entire interview, and Agent Hurt typed up appellants sworn statement.
After appellant had signed his statement, it was reviewed by Agent Sweeney.
Agent Sweeney took notes during appellants interview that further reflected
admissions made by appellant. These additional admissions were recorded
on a Results of Interview document.
On various dates between November 27,
1995, and February 2, 1996, appellant was tried by general court-martial
composed of officer and enlisted members. Contrary to his pleas, he was
found guilty by the court-martial of attempted murder and aggravated assault.
He was sentenced to confinement for 32 years, forfeiture of all pay and
allowances, reduction to E-1, and a dishonorable discharge. The convening
authority approved the sentence and, except for the dishonorable discharge,
ordered the sentence executed. The Court of Criminal Appeals affirmed the
findings and sentence in an unpublished opinion.
Particular facts relevant to each issue
are incorporated within the discussion of the issue itself.

I
In the first issue, appellant alleges
that the military judge abused his discretion by refusing to grant a mistrial
after trial counsel based his opening statement on inadmissible evidence.
Trial defense counsel had sought during a motion in limine to exclude
testimony regarding appellants gang affiliation, including appellants
wearing of gang colors on the day in question. The military judge granted
this motion in part and denied it in part. He determined that, although
appellants gang affiliation was relevant in regard to the previous nights
argument, which ultimately led to the stabbing, the testimony that gang
members would dress in a certain way to kill someone was inadmissible.4
However, in his opening statement,
trial counsel commented that, "when [appellant] put on his colors, . .
. that meant something; that in that environment and that world, you dont
take a knife and stick somebody to teach them a lesson." Also, "Franklin
will tell you, you dont teach lessons where they come from. You dont.
Its a cold, hard fact. Because that person, if he lives, hes coming back
to kill you. So you got to kill somebody once a gun or knife is produced."
After the close of trial counsels
opening statement, appellant requested a mistrial. The military judge denied
the motion and determined that a curative instruction was the appropriate
remedy.5 The military
judge concluded by asking the members if they understood the instruction
and could abide by it. The members acknowledged that they would follow
the military judges instruction. Appellants counsel did not object to
the instruction as it was given.
Later in the trial, several members
of the court-martial posed questions about gang colors that the defense
counsel objected to.6
The military judge sustained counsels objection to each of these questions
and did not ask the questions. Additionally, he informed the members that
they were not to speculate as to why the questions were not asked. During
his instructions on findings, the military judge also instructed the members,
among other things, that the arguments of counsel were not evidence; that
innocence or guilt had to be based on the evidence presented, and that
only matters properly before the court should be considered.
Appellant contends that the military
judge abused his discretion by denying the request for a mistrial after
the trial counsel devoted much of his opening statement to discussing inadmissible
evidence. His argument is that the curative instruction was an inadequate
remedy for the prejudice he suffered from that opening statement. We disagree.
According to RCM 915(a), Manual for
Courts-Martial, United States (1995 ed.), "[t]he military judge may, as
a matter of discretion, declare a mistrial when such action is manifestly
necessary in the interest of justice because of circumstances arising during
the proceedings which cast substantial doubt upon the fairness of the proceedings."
"The power to grant a mistrial should be used with great caution, under
urgent circumstances, and for plain and obvious reasons . . . [such as]
when inadmissible matters so prejudicial that a curative instruction would
be inadequate are brought to the attention of the members . . . ." RCM
915(a), Discussion. This Court has previously referred to a mistrial as
a "drastic remedy" that the military judge should order only when necessary
to "prevent a miscarriage of justice." United States v. Garces,
32 MJ 345, 349 (CMA 1991).
The decision to grant a mistrial lies
within the discretion of the military judge; an appellate court must not
reverse the decision absent clear evidence of abuse of that discretion.
See
United States v. Dancy, 38 MJ 1, 6 (CMA 1993). A curative instruction
is the "preferred" remedy for correcting error when the court members have
heard inadmissible evidence, as long as the instruction is adequate to
avoid prejudice to the accused. See United States v. Skerrett,
40 MJ 331, 333 (CMA 1994). Absent evidence to the contrary, this Court
may presume that members follow a military judges instructions.
See
United States v. Loving, 41 MJ 213, 235 (1994); United States
v. Holt, 33 MJ 400, 408 (CMA 1991).
Appellant mounts a twofold attack on
the substitution of the curative instruction in question for a mistrial.
We consider each of his arguments in turn.
First, appellant characterizes the
wording of the instruction as "cursory," "incomplete, confusing, and erroneous."
However, appellants attorney did not object to the wording of the instruction
as given, thereby waiving any issue involving that instruction. RCM 801(g),
920(f).
Second, appellant makes much of the
trial members inadmissible questions to LCpl Franklin. However, these
questions do not constitute evidence that the members of the court-martial
did not understand or would not follow the military judges instructions.
The judges instructions to them were to only consider evidence provided
from the trial testimony. The judge did not order them to refrain from
asking any questions concerning the subject matter of a particular motion
in limine that he had granted in part. Arguably, these questions demonstrate
that some members curiosity may have been aroused by the trial counsels
opening reference to gang colors. However, the mere fact of the questions
does not lead us to conclude that the members refused to follow the judges
instruction to only consider the evidence presented from the witnesses
when
deliberating. Thus, the presumption that the members followed
the military judges instructions has not been rebutted. Loving,
supra at 235; Holt, supra at 408.
Accordingly, we agree with the Court
of Criminal Appeals that the military judge did not abuse his discretion
by refusing to grant appellant a mistrial.

II
The second granted issue involves the
military judges decision to admit certain portions of appellants pretrial
statement. Appellant argues that these portions of the statement were evidence
of inadmissible uncharged misconduct.
Specifically, appellant points to four
matters in the statement: (1) an admission that appellant had been involved
in minor criminal activity before joining the Corps; (2) an incident at
Camp Johnson, North Carolina, during which appellant showed a knife to
deter his roommate, PFC Pendegrass, from "messing" with appellant; (3)
an incident during which appellant armed himself with a Gerber knife in
response to a disagreement with LCpl Hibbard; and (4) a statement that
appellant had fired a weapon at a person before appellant became a Marine.
Generally, a military judges ruling
on admissibility of evidence is reviewed for abuse of discretion. See,
e.g.,
United
States v. Johnson, 46 MJ 8, 10 (1997). Thus, the challenged action
must be "arbitrary, fanciful, clearly unreasonable," or "clearly erroneous"
to be overturned on appeal. United States v. Travers, 25 MJ 61,
62 (CMA 1987).
Under Mil.R.Evid. 404(b), Manual, supra,
evidence of "other crimes, wrongs, or acts" may be admitted if the proffered
evidence: (1) reasonably supports a finding that appellant committed the
crime, wrong, or act; (2) makes a fact of consequence more or less probable;
and (3) possesses probative value that is not substantially outweighed
by the danger of unfair prejudice. See United States v. Miller,
46 MJ 63, 65 (1997). The test for admissibility, therefore, is "whether
the evidence of the misconduct is offered for some purpose other than to
demonstrate the accuseds predisposition to crime and thereby to suggest
that the factfinder infer that he is guilty, as charged, because he is
predisposed to commit similar offenses." United States v. Castillo,
29 MJ 145, 150 (CMA 1989).
The military judge denied the defense
motion to redact the portions of the pretrial statement in question because
"blanking out the entire paragraph . . . might invite the members to speculate
about what is being kept from them and it may cause them to actually infer
something adverse to the accused when in fact, he was engaged in a perfectly
lawful act." The court also reasoned that the knife incident involving
LCpl Hibbard was logically relevant to show that appellant owned a Gerber
knife similar to the knife used in the Neal stabbing.
Instead of blanking out the entire
paragraph, the military
judge provided cautionary instructions.7
We note that appellant has not offered
any facts or circumstances which would show that the use of the disputed
evidence was not limited by effective instructions by the military judge.
As there is no evidence to the contrary, the members are presumed to have
not considered this evidence at all with respect to the findings of guilt.
See
United States v. Orsburn, 31 MJ 182, 188 (CMA 1990).
Accordingly, we have no need to second-guess
the military judges careful decision to admit the evidence in question.
The military judge decided that admitting appellants entire sworn confession
was less prejudicial to the defense than the alternative of blackening
out the disputed portion. Since appellants theory at trial was that the
members should only believe that portion of his confession where he stated
he did not intend to kill LCpl Neal, we believe the military judges concern
about the members questioning the truth of the confession, if parts of
it were redacted, was well-founded.
Our learned colleagues find the admission
of this unredacted confession, without similar limiting instructions, to
have prejudiced appellant as to sentence. We respectfully disagree. The
instructions accompanying the admission of the exhibit given at the time
it was introduced simply do not vanish from the record. To the contrary,
the instructions follow the exhibit and limit its value throughout the
trial.
Finally, in light of the overwhelming
evidence against appellant, even if admission of this evidence was error,
we believe it to be harmless error, even as to sentence.

III
Appellants third and final contention
is that he was denied his Sixth Amendment right to confront the witnesses
against him when NCIS Agent Hurt testified about admissions made by appellant
in the NCIS interview. Appellant contends that Agent Hurt never actually
heard appellant make the statements about which he testified in court;
but instead, after the execution of the sworn statement, Agent Hurt asked
Agent Sweeney about any additional information contained in Agent Sweeneys
notes, at which time Agent Sweeney relayed to him the statements he testified
to at trial.
Appellant argues that Agent Sweeney
was the sole competent witness to the statements he had annotated in his
notes, and that allowing Agent Hurt to testify to Agent Sweeneys recollections
violated appellants Sixth Amendment right to confront the witnesses against
him. Appellant concedes that Mil.R.Evid. 805, in conjunction with Mil.R.Evid.
801(d)(2)(A) and 803(6), generally supports admission of evidence such
as in this case. However, appellant claims a violation of the Confrontation
Clause of the United States Constitution, on the theory that the Government
failed to demonstrate that the witness to the statements used against appellant
at trial was unavailable to testify.
Appellants argument founders on the
fact that NCIS Agent Hurts testimony makes it clear that both he and Agent
Sweeney were present throughout the entire interview. Thus, the assertion
that NCIS Agent Hurt never heard the statements made by appellant is contradicted
by the testimony in this case. There is no evidence in the record that
NCIS Agent Hurt was testifying from Agent Sweeneys notes, but rather the
record makes it clear that he was testifying based on his own personal
knowledge as to appellants admissions.
What is more, NCIS Agent Hurt was subjected
to cross-examination when he testified in this case. At trial, appellant
did not object to his testimony regarding the admissions in question, nor
did appellant cross-examine him about them. We therefore do not believe
that appellant has established any error in this regard, let alone plain
error.

Conclusion
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTES:
1 In violation of
Article 80, Uniform Code of Military Justice, 10 USC § 880. A charge
of aggravated assault, Art. 128, UCMJ, 10 USC § 928, arising out of
the same underlying circumstances was dismissed by the Court of Criminal
Appeals as multiplicious.
2
As framed by appellant, the granted issues are:



I. WHETHER THE
MILITARY JUDGE ABUSED HIS DISCRETION BY REFUSING TO GRANT A MISTRIAL AFTER
TRIAL COUNSEL BASED HIS OPENING STATEMENT ON INADMISSIBLE EVIDENCE.
II. WHETHER THE
MILITARY JUDGE ERRED BY ADMITTING, OVER DEFENSE OBJECTION, EVIDENCE OF
UNCHARGED MISCONDUCT CONTAINED IN APPELLANTS PRETRIAL STATEMENT TO THE
NAVAL CRIMINAL INVESTIGATIVE SERVICE.
III. WHETHER PLAIN
ERROR OCCURRED WHEN THE MILITARY JUDGE IMPROPERLY ADMITTED INHERENTLY INCONSISTENT
STATEMENTS AS INCULPATORY HEARSAY AGAINST APPELLANT AT TRIAL WITHOUT AFFORDING
HIM THE PROPER OPPORTUNITY TO CONFRONT THE WITNESS AS PROVIDED BY THE SIXTH
AMENDMENTS CONFRONTATION CLAUSE.



3 Citations
to the record of trial omitted.
4
According to the military judge, the evidence was inadmissible



to the extent
that the government intends to offer evidence that there exists some common
practice for gang members, either in this gang or in other gangs to dress
themselves up in a particular way before going out to commit a particular
crime and that the accused therefore must have been intending to commit
this crime simply because he was so attired on this occasion. I dont see
that as being relevant. Im not sure that I even see that as being logically
relevant because I consider the link there very frankly to be very tenuous.
But in any event, even if it were logically relevant, I specifically find
that the danger of unfair prejudice would substantially outweigh the very
minimal probative value of that particular item of testimony.



5 The
military judge instructed the court as follows:



Mr. President
and Members of the Court, during his opening statement, you may have heard
the trial counsel make reference to various customs and practices with
regard to battle and fighting that are common in this particular gang to
which the trial counsel referred to in his opening statement. That portion
of the trial counsels opening statement was improper, that evidence is
not admissible, and the statements of the counsel are not admissible evidence.
In other words,
the statements of counsel generally are not evidence that may be considered
by you. You may only consider the testimony that you see and hear from
the witnesses and from the documents and exhibits presented before you
in this trial.
Each of the members
is specifically instructed to disregard that portion of the trial counsels
opening statement because there will be no evidence of that matter before
the court.



6 One
member asked, "Are there special occasions in which you [LCpl Franklin]
would wear colors?" Another member queried, "What are the times when a
gang member would wear a bandana?" Also, the question was put, "What occasion
would a gang member wear a bandana, i.e., battle?"
7
The judges instructions were as follows:



There was evidence
before you in Prosecution Exhibit 1 that the accused may, on a previous
occasion, have threatened another Marine with a knife while the accused
was stationed at Camp Johnson in North Carolina. With regard to this portion
of Prosecution Exhibit 1, you are advised that a person may, acting in
self-defense, in order to frighten or discourage an assailant, threaten
more force than he is legally allowed to actually use, under the circumstances.
A person who reasonably fears an immediate attack is allowed to display
or threaten the use of an ordinarily dangerous weapon, or an object likely
to produce grievous bodily harm, even though the person does not have a
reasonable fear of serious harm, as long as the person does not actually
use the weapon or means, or attempt to use it, in a manner likely to produce
grievous bodily harm.
Therefore, with
regard to the accuseds use of a knife to defend himself in the incident
at Camp Johnson, described in Prosecution Exhibit 1, you are advised that
if the facts are as described by the accused in his statement, then the
accused, on that occasion was merely exercising his legal right of self-defense.
In so doing, the accused violated no law. You may, therefore, not conclude
from this evidence that the accused is a bad person or has criminal tendencies
and that he therefore committed the offense as charged.
Evidence that the
accused may, on a previous occasion, have threatened a Lance Corporal Kibber
[sic] with a knife may be considered by you for the limited purpose of
its tendency, if any, to show that the accused did actually possess a knife
of the type allegedly used in the 18 June 1995 incident with Lance Corporal
Neal. You may not consider this evidence for any other purpose and you
may not conclude from this evidence that the accused is a bad person or
has criminal tendencies and that he therefore, committed the offense as
charged.
There is evidence
before you in Prosecution Exhibit 1 that on a prior occasion, before coming
into the Marine Corps, the accused may have fired a weapon at someone.
The accused has not been charged with any offense as a result of this incident
and there is no evidence before the court to show whether this act was
lawful or not. With regard to this incident, you are advised that the accused
is entitled to the presumption of innocence. In the absence of evidence
tending to show guilt, you must presume that the accused is not guilty
of any crime stemming from this incident. You may not, therefore, conclude
from this evidence that the accused is a bad person or has criminal tendencies
and that he therefore, committed the offense as charged.




GIERKE, Judge, with whom EFFRON, Judge,
joins (concurring in part and dissenting in part):
I agree with the majoritys resolution
of the first and third issues. With respect to the second issue, I agree
with the majority that any error in failing to redact appellants confession
was harmless with respect to findings. I part company with the majority
with respect to the unredacted confessions impact on the sentence.
Although the military judge limited
the members consideration of the uncharged misconduct in his instructions
on findings, he did not provide any limiting instructions on sentence.
Instead, he instructed the members that they were "required to consider
not only the evidence adduced at the sentencing hearing, but also the evidence
that was presented during the trial on the merits and so that would include
all the exhibits." The military judge then directed the members attention
specifically to "Prosecution Exhibit 1, the statement of the accused to
NIS and Prosecution Exhibit 2, the knife, and Prosecution Exhibit 3, the
right side of the accuseds service record book." In short, the military
judge directed the members to consider the inadmissible evidence of uncharged
pre-service conduct.
Appellant received a lengthy sentence
to confinement. It is reasonable to presume the members followed the instructions
of the military judge and considered and weighed all the evidence on sentencing,
including the inadmissible portions of the unredacted statement. Thus,
I am not satisfied that the inadmissible portions of the unredacted statement
did not affect the sentence. I would remand the case to the Court of Criminal
Appeals for sentence reassessment.


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