                        UNITED STATES, Appellee

                                     v.

                        Juan F. DIAZ, Specialist
                          U.S. Army, Appellant


                               No. 02-0513


                         Crim. App. No. 9900768



       United States Court of Appeals for the Armed Forces

                          Argued April 1, 2003

                      Decided September 17, 2003

     GIERKE, J., delivered the opinion of the Court, in which
 EFFRON, BAKER, and ERDMANN, JJ., joined. CRAWFORD, C.J., filed
  a separate opinion concurring in part and dissenting in part.

                                  Counsel
For Appellant: Captain Terri J. Erisman (argued); Colonel Robert
   D. Teetsel, Lieutenant Colonel E. Allen Chandler, and Major
   Imogene M. Jamison (on brief); Colonel Adele H. Odegard.
For Appellee: Captain Matthew J. MacLean (argued); Lieutenant
   Colonel Margaret B. Baines, Lieutenant Colonel Lauren B.
   Leeker, and Major Jennifer H. McGee (on brief).

Amicus Curiae: Emily C. Tarr (law student)(argued); Henry J.
   Hogan, III, Esq. (supervising attorney), Kathryn V. Chelini
   and Brian W. Earley (law students)(on brief) – for New
   England School of Law, Military Justice Appellate Advocacy
   Program.

Military Judge:    Richard J. Hough

  This opinion is subject to editorial correction before final publication.
United States v. Diaz, No. 02-0513/AR


      Judge GIERKE delivered the opinion of the Court.

      A general court-martial composed of officer members

convicted Appellant, contrary to his pleas, of unpremeditated

murder and assault upon a child under 16 years of age, in

violation of Articles 118 and 128, Uniform Code of Military

Justice [hereinafter UCMJ] 10 U.S.C. §§ 918, 928 (2000),

respectively.     The adjudged and approved sentence provides for a

dishonorable discharge, confinement for life, forfeiture of all

pay and allowances, and reduction to the lowest enlisted grade.

The Court of Criminal Appeals affirmed the findings and sentence.

United States v. Diaz, 56 M.J. 795 (A. Ct. Crim. App. 2002).
      This Court granted review of the following issues:1

                                        I.

      WHETHER THE MILITARY JUDGE ERRED IN ALLOWING GOVERNMENT
      EXPERTS TO TESTIFY REGARDING PRIOR INSTANCES OF ALLEGED
      MISCONDUCT.

                                        II.

      WHETHER THE MILITARY JUDGE ERRED IN DENYING THE DEFENSE
      MOTION FOR A MISTRIAL FOLLOWING THE IMPROPER TESTIMONY OF
      TWO GOVERNMENT WITNESSES.

                                    III.
      WHETHER THE MILITARY JUDGE ERRED IN FAILING TO SUPPRESS
      APPELLANT’S STATEMENTS, OBTAINED BY CPT TREMAINE IN
      VIOLATION OF APPELLANT’S RIGHT UNDER ARTICLE 31, UCMJ,
      SOLELY BECAUSE OF CPT TREMAINE’S STATUS AS A MEDICAL DOCTOR.

                                        IV.

      WHETHER APPELLANT’S RIGHT TO DUE PROCESS WAS VIOLATED WHEN
      THE MILITARY JUDGE ERRONEOUSLY FAILED TO SUPPRESS
      APPELLANT’S STATEMENTS TO MS. AMLIN WHERE (1) SUCH
      STATEMENTS WERE NOT PRECEDED BY ARTICLE 31 WARNINGS WHICH
1
  We heard oral argument in this case at New England School of
Law, Boston, Massachusetts, on April 1, 2003, as part of “Project
Outreach.” See United States v. Allen, 34 M.J. 228, 229 n.1
(C.M.A. 1992).



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United States v. Diaz, No. 02-0513/AR


      WERE REQUIRED TO BE GIVEN SINCE MS. AMLIN WAS ACTING AS AN
      INSTRUMENTALITY OF THE MILITARY; (2) ARMY REGULATION 608-18
      REQUIRES THAT SOCIAL WORKERS PROVIDE ARTICLE 31 WARNINGS
      PRIOR TO QUESTIONING A SOLDIER ABOUT DOMESTIC ABUSE AND SUCH
      REGULATION WAS INTENDED TO CONFER A SUBSTANTIAL RIGHT ON THE
      ACCUSED; AND (3) WHERE SUCH STATEMENTS WERE UNLAWFULLY
      INDUCED IN VIOLATION OF ARTICLE 31(d) AND THE FIFTH
      AMENDMENT PROHIBITION AGAINST COMPULSORY SELF-INCRIMINATION
      THROUGH THE REMOVAL OF APPELLANT’S DAUGHTER FROM HIS CUSTODY
      BY CHILD PROTECTIVE SERVICES TWO YEARS BEFORE AND BY THE
      THREAT THAT IF HE DID NOT CONFESS TO INTENTIONALLY HARMING
      HIS DAUGHTER HIS PARENTAL RIGHTS WOULD BE PERMANENTLY
      TERMINATED.

      For the reasons set out below, we reverse the decision of

the Court of Criminal Appeals.          Because we address Issues I and

II and hold for Appellant, we do not reach Issues III and IV.

                       I. BACKGROUND AND OVERVIEW
      The charges against Appellant arose from a series of severe

injuries to Appellant’s two infant daughters, Nicole and Jasmine,

and the death of Nicole, all occurring between January 1993 and

July 1995.    Each injury and Nicole’s death occurred while

Appellant was alone with the children.         Appellant’s pretrial

statements provided his only explanation of the circumstances of

the injuries and the death.

      The prosecution attempted to prove its case by establishing
a “pattern of abuse by [A]ppellant against his infant daughters”

in both uncharged misconduct and the charged offenses.         Diaz, 56

M.J. at 798.    Appendix A to this opinion is the prosecution’s

“Chronology” used by the trial counsel in the opening statement

to demonstrate this alleged pattern of abuse.         The prosecution’s

case was built on expert medical testimony, Appellant’s

admissions, and circumstantial evidence.

      The defense objected to the admissibility of the uncharged

misconduct and Appellant’s admissions.         The defense also filed


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United States v. Diaz, No. 02-0513/AR


repeated motions in limine to limit the scope of expert medical

testimony thereby laying the foundation for each of the granted

issues.

      While each of these issues invites scrutiny, we need not

address all of them.      A critical error at trial was the testimony

of a key prosecution medical expert who, contrary to the explicit

ruling of the military judge and the apparent direction of the

trial counsel, testified that Appellant killed his infant

daughter.    This error was compounded by similar testimony by a

social worker.     The judge denied a defense motion for a mistrial

and attempted to cure the error by giving a curative instruction

to the members.     It is the impact of this error on the entire

proceeding that is the focus of our decision.           See ___ M.J.
(2)(Granted Issues I and II).

                                 II. FACTS

        A. Burns and other physical injuries to Nicole Diaz

      On November 25, 1992, Nicole was born to Appellant and his

wife.   On January 23, 1993, Nicole was sick with a cold

-- runny nose and coughing.       Following the direction of a nurse
at the Fort Sill, Oklahoma, clinic, Mrs. Diaz purchased a

vaporizer.    Mrs. Diaz read the directions and set it up in the

bedroom she and Appellant shared with the baby.

      While Mrs. Diaz was in the shower, Appellant placed Nicole

over the vaporizer, which resulted in her being seriously burned.

The burn extended from her upper lip to her hairline on the

entire left side of her face.           When Mrs. Diaz returned to the

bedroom, Appellant told her that he heard Nicole’s congestion and




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United States v. Diaz, No. 02-0513/AR


“that he’d put her over the vaporizer to help her breathe,

because it would help her breathe better.”

      Immediately, they took Nicole to Reynolds Army Community

Hospital in Fort Sill.      Nicole was flown to Children’s Hospital

in Oklahoma City for treatment because she had second degree

burns.   While treating Nicole, doctors at Children’s Hospital

noted other injuries, including bruises to her face and chest.

X-rays revealed leg fractures and healing posterior rib

fractures, which appeared to be seven to fourteen days old.

      Dr. Oscar Falcon was interning at Children’s Hospital on the

night Nicole was admitted for her burn.         Dr. Falcon was working

in the plastic surgery department and examined Nicole.         He saw

the burns on her face and bruises to her face and chest.

      Dr. Falcon interviewed both Appellant and Mrs. Diaz as part

of the treatment.     Appellant told Dr. Falcon that Nicole was

burned when “the steamer had fallen and hot water had splashed

over [Nicole’s] face.”      This was different from what Appellant

previously told his wife.       At trial, Dr. Falcon testified that he

was “99 percent sure” that Appellant informed him of how Nicole

was burned, as opposed to Mrs. Diaz, but conceded that he was not

“100 percent sure” because six years had elapsed between his

treatment of Nicole and his trial testimony.

      These events triggered a report of suspicion of abuse and

neglect to Oklahoma social services department.         The source of

the report is unclear from the record.         Following up on this

report, Dr. John H. Stuemky, another doctor, examined Nicole.

Dr. Stuemky was a pediatrician with over thirty years of

experience and wearing “many hats.”         He was an associate


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United States v. Diaz, No. 02-0513/AR


professor of pediatrics at the University of Oklahoma College of

Medicine.    He also served as Chief of the Pediatric Service,

Medical Director of the Emergency Department, and Chairman of the

Child Protection Committee for Children’s Hospital.

      The Child Protection Committee is charged with reviewing

cases of suspected child abuse and neglect.      This committee

ensures that appropriate information is collected in the hospital

(the medical findings, medical evaluations, social service

reports) and is shared with the appropriate investigatory

agencies to evaluate suspicions of abuse and neglect.      As

chairman of the committee, Dr. Stuemky evaluated Nicole.

      Dr. Stuemky examined Nicole’s burns and reviewed the medical

records and X-rays.      The X-rays showed three posterior rib

fractures.    He made sure this information was passed on to Child

Welfare and other appropriate agencies.

      Also at Children’s Hospital, Ms. Jo Ellen Copeland, a social

worker, questioned Appellant about possible abuse of Nicole.

Appellant admitted bruising Nicole and made conflicting

statements about how she suffered the burns.      Appellant first

told her that he held Nicole over the vaporizer for three to four

seconds, then changed it to between eight and ten seconds.        In

this and two later interviews, Appellant provided three different

descriptions of how he held Nicole when she was burned.

      Ms. Copeland asked that the police be contacted and that

Nicole be placed in protective custody.      Nicole was placed in

foster care, where she remained in excellent health and thrived.

On November 5, 1993, when Nicole was approximately one year old,

she was returned to the care and custody of her parents.


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United States v. Diaz, No. 02-0513/AR


                      B. The death of Nicole Diaz

      On February 11, 1994, Nicole died while she was alone with

Appellant.    Nearly twelve hours after Nicole’s death, in a

videotaped interview with Lawton Oklahoma Police, Appellant said

that he and his wife again were in the bedroom of their apartment

with Nicole sleeping in her crib.           Appellant removed Nicole from

her crib because she was coughing.          He gave her some Dimetapp

cough medicine and laid her on his lap as he watched television

in the living room.

      After sitting with Nicole for about fifteen minutes, he

picked her up to put her back in her crib.          At that time, he

noticed Nicole was limp and not breathing.          Appellant claimed

that Nicole did not indicate any distress before she died.

Appellant unsuccessfully tried to resuscitate her.          He then went

to the bedroom and woke Mrs. Diaz.          After Mrs. Diaz telephoned a

neighbor for advice, she and Appellant drove Nicole to Reynolds

Army Community Hospital, a short distance from their apartment.

      Mary Hyde, a registered nurse, was working at Reynolds Army

Hospital.    At the reception desk, she observed Nicole, who was

“obviously unresponsive,” lying limp across Mrs. Diaz’s arms.

Mrs. Diaz told Ms. Hyde that Nicole had been unresponsive for

“[a] while.”    Nicole was not breathing and she did not have a

pulse.   Her eyes were fixed and dilated.         There were no

obstructions to her breathing.          Ms. Hyde brought Nicole to the

trauma room, where she and a doctor unsuccessfully attempted to

resuscitate her.

      Dr. Larry Balding, a Deputy Medical Examiner in the Office

of the Chief Medical Examiner in Oklahoma, performed an autopsy


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United States v. Diaz, No. 02-0513/AR


on Nicole.    The external examination of Nicole’s body revealed

marks caused by efforts to resuscitate her and a “hypopigmented

area, meaning the skin was a little darker” on Nicole’s “left

cheek, right under the left eye.”           There were also two small

bruises to her scalp which were revealed by opening the scalp.

Dr. Balding concluded that these bruises occurred before Nicole’s

death.

      Dr. Balding conducted an internal exam and determined “as

far as the internal organs go, there was no evidence of injury or

natural disease.”     There was “no evidence of intracranial

hemorrhage or infection” and the brain was “normally formed and

show[ed] no evidence of injury or disease.”           The toxicology

screen showed small amounts of over-the-counter cold medication

and the presence of drugs used in resuscitation attempts but “was

essentially negative . . . in terms of having any relation to

causing the death.”

      While Dr. Balding “could find no cause of death,” he noted

the death as “suspicious.”       He “felt that the past history of

unexplained or inadequately explained injuries in this child is a

significant condition.”       The autopsy report listed Nicole’s cause

of death as “unknown” and the manner of death as “undetermined.”

Dr. Balding opined that the autopsy findings were consistent with

a death by suffocation.       He also opined that he could not rule

out a Sudden Infant Death Syndrome (SIDS) type death in this

case.    However, he did not use that diagnosis because “the

injuries [to Nicole] were enough to make [him] say that [he]

couldn’t use that diagnosis.”




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United States v. Diaz, No. 02-0513/AR


                        C. Burns to Jasmine Diaz

      In September 1994, several months after Nicole’s death,

Appellant was transferred to Hawaii.          On January 5, 1995,

Appellant’s wife gave birth to a second daughter, Jasmine.            On

July 30, Appellant burned Jasmine’s inner left thigh with the tip

of a heated cigarette lighter.          This was the third reported

incident of Appellant’s infant daughters suffering harm when

alone with him.     Appellant claimed that he accidentally dropped

the lighter on Jasmine as he was trying to ignite a caterpillar

or centipede that had crawled into her crib.

      The next day, Appellant’s wife presented Jasmine to Dr.

Elizabeth Abinsay, a pediatrician at St. Francis Medical Center-

West in Ewa Beach, Hawaii, who treated Jasmine for the burn to

her left thigh and also an ear infection.          Dr. Abinsay evaluated

the injury as a second degree burn and provided follow-up

treatment in both August and September.

         D. Further investigation into possible child abuse
      After Jasmine was burned, Hawaii Child Protective Services

(CPS) initiated an evaluation of Jasmine for suspected child
abuse and neglect.      In October 1995, Jasmine was admitted to the

pediatric ward at the Tripler Army Medical Center, Hawaii, where

Captain Ladd Tremaine, M.D., a board-certified pediatrician,

evaluated Jasmine’s injuries to determine if they were the result

of accidental or non-accidental trauma.          He examined a “well

healed scar on the left medial aspect of her upper thigh that had

essentially a branding pattern to it, potentially three different

distinct areas.”     Dr. Tremaine determined that the burns were

“classic branding injur[ies]” and were not incurred accidentally.


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United States v. Diaz, No. 02-0513/AR


As part of the evaluation, Dr. Tremaine talked to Appellant.

According to Dr. Tremaine,

      Specialist Diaz reported that Jasmine had been laid down to
      sleep that night, and when he went in to look in on her, he
      noticed a centipede laying in her crib. He proceeded to
      obtain his lighter and to chase the centipede around the bed
      and try to burn the centipede. While he was doing that, he
      reported that he’d taken Jasmine into his wife’s -- where
      his wife was, and his wife was in their bedroom. He went
      back, got Jasmine, went to the living room, reported
      lighting a cigarette and dropping the lighter on Jasmine’s
      leg.

Following Dr. Tremaine’s evaluation, CPS removed Jasmine from her

parents’ custody.

      At some unspecified time in 1996, Dr. Stuemky, acting as a

member of the Death Review Board of Oklahoma (Death Review

Board), became involved in the investigation of Nicole’s death.

This is an official state board (including physicians, nurses,

and members of the law enforcement community) that conducts a

multi-disciplinary review of every death of a child under the age

of 18 “so no deaths would escape notice.”    One function of the

Death Review Board is to collect all agency and medical reports

and records so that local officials could have access to all

information relating to the death of a child.

      Based on his review of this case, Dr. Stuemky concluded that

Nicole’s death was a homicide and Appellant was the perpetrator.

The Death Review Board contacted the military to make sure the

investigators in the Army were aware of Nicole’s previous

injuries.    In July 1997, Appellant was transferred to Fort Drum,

New York.    Mrs. Diaz remained in Hawaii to retain custody of

Jasmine.




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United States v. Diaz, No. 02-0513/AR


      Appellant met four times with Ms. Reagan Amlin, a clinical

social worker in the Family Advocacy Program dealing with high-

risk families and clients at Fort Drum.      In November and December

1997, Appellant sought counseling as required by the CPS in order

to be reunited with Mrs. Diaz and Jasmine.      The purpose of this

therapy was for Appellant “to take ownership of the abuse, to

take responsibility for the abuse . . . .”      It was also to help

Appellant understand “the enormity of the consequences to the

child.”   At the third session, following their discussion of

Jasmine, Ms. Amlin questioned Appellant about Nicole’s burn.

According to Ms. Amlin:

            [Appellant] indicated that . . . Mrs. Diaz was
            asleep, it was late at night. Nicole had a cold,
            and he removed the child from the crib and placed
            her face over a steamer. He indicated that he
            was holding [Nicole] over the steamer with her
            face getting the steam. He indicated that he was
            doing that to help her breathe . . . . He
            indicated that [Nicole] made no movement at all,
            and he didn’t realize he was burning the child,
            and the child didn’t give any indication that
            [she] was being hurt.

      Appellant and Ms. Amlin next discussed Nicole’s death.

According to Ms. Amlin, Appellant informed her

            that the night Nicole died, again, Mrs. Diaz was
            sleeping. He’d taken Nicole from the crib, was
            sitting on the sofa in the living room and,
            again, watching TV. He indicated . . . that when
            he was ready to go to bed, he took the child to
            put her back in the crib, and it was at that time
            that he discovered that the child had died.

When she asked if he covered Nicole’s mouth and nostrils to see

what would happen, Appellant responded, “I just want to be

normal.   I’m never going to get my family back.     What will happen

to me if I go to jail[?]”       At this time, Appellant gave Ms. Amlin

a “rather strange expression . . . it was rather like a smirk at


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United States v. Diaz, No. 02-0513/AR


first.”   After this session, Ms. Amlin reported Appellant to U.S.

Army Criminal Investigation Command (CID).

      During the fourth session, Ms. Amlin discussed the nature of

the injuries to the children and the patterns she was seeing.

Ms. Amlin told Appellant that she believed he killed Nicole.         In

response, Appellant asked, “What will happen to me?” and

indicated he was afraid of going to jail.       Appellant also

indicated that “he did not know anything until he put her into

the bed, and then he realized that she was dead.”

      Ms. Amlin told Appellant, “I’m very convinced that you

killed Nicole.”     Appellant paused and then said, “You don’t know

the half of it.”     Appellant started questioning what was going to

happen to him and said, “I’m never going to get my family back.”

Ms. Amlin “felt at that time that he started to realize that he’d

said an awful lot, and that it wasn’t going to be very helpful to

him as far as [CPS] went.”       The fourth session concluded with

Appellant getting angry and stating that he probably would not be

back.

      Based on these facts, on October 28, 1998, two charges were

preferred against Appellant -- murder of Nicole by suffocating

her and aggravated assault of Jasmine by burning her on the leg

with a cigarette lighter.       These charges were referred to a

general court-martial on February 11, 1999.2




2
  By this time, the prosecution of Appellant for the November
1992 burning of Nicole with the vaporizer was barred by the
statute of limitations. See Article 43(b)(1), Uniform Code of
Military Justice, 10 U.S.C. § 843(b)(1) (2000)(five-year statute
of limitations).


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United States v. Diaz, No. 02-0513/AR


                 III.    TRIAL DEVELOPMENTS RELATED TO

                   APPELLANT’S MOTION FOR A MISTRIAL

    Expert medical testimony was the centerpiece of both the

prosecution and the defense.        The prosecution’s case included

four medical experts who testified about both the charged

offenses of abuse and Appellant’s uncharged misconduct to

establish a pattern of Appellant abusing his daughters.          The

defense relied on testimony of two medical experts, including one

prosecution doctor whom the defense adopted as its own witness.

The defense also elicited testimony on cross-examination from two

other prosecution experts to challenge the prosecution’s theory.

The defense used expert testimony to bolster the Appellant’s

explanation of accidental burns to both girls.          Expert testimony

was also used to assert “crib death” or SIDS as Nicole’s cause of

death.

      As Appellant did not testify at trial, both parties relied

on Appellant’s pretrial statements to provide his explanation of

the circumstances of the injuries and the death.          In these

pretrial statements, Appellant persistently denied culpability in

the death of Nicole.      Also, Appellant repeatedly admitted

inadvertently and accidentally causing some injury to the girls,

although with sometimes conflicting explanations as to the

circumstances of the injuries.          On one occasion, Appellant

admitted that he intentionally burned Jasmine, but the defense

argued his admission was to satisfy a social service agency

requirement and to placate a social worker who insisted that

Appellant “accept the guilt of this” and get help before

Appellant could be eventually reunited with Jasmine.


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United States v. Diaz, No. 02-0513/AR


    Before this Court, Appellant asserts that the testimony of

two government witnesses, Ms. Amlin and Dr. Stuemky, should have

resulted in a mistrial.       The specific testimony at issue is:

      1.   Ms. Amlin’s testimony that she confronted Appellant

           with her personal belief that Appellant killed Nicole;

      2.   Dr. Stuemky’s testimony as to his conclusions regarding

           Nicole’s death: “My conclusions were that this was a

           homicide death – that this was a physical abuse death.

           And furthermore, I felt that the perpetrator was the

           father.”

                        A. Ms. Amlin’s testimony
      Trial defense counsel moved in limine to prevent Ms. Amlin

from rendering any opinion about what she thought happened to

Nicole.    The Government responded that it did not intend to

elicit that opinion.      However, during her testimony, Ms. Amlin,

in explaining the purpose of the therapy, stated, “My job is to

make sure very clearly that this individual is guilty of what

he’s being accused of.”       Later, Ms. Amlin indicated that she

confronted Appellant with her belief that he had killed Nicole.
The morning after Ms. Amlin testified, defense counsel expressed

concern that Ms. Amlin had testified as to her opinion that this

was a homicide when she stated, “I was convinced that he killed

his daughter.”     The military judge responded:

            I’m going to give a limiting instruction to the effect
            of whatever extent the [members] might come to that
            conclusion by her testimony. That expression -- I
            remember one. It might’ve happened more than that. It
            concerned me last night when I thought about it,
            because I think the [members] could be misled into
            believing that her feeling was that he did it. That
            expression was used in the course of her therapy to
            talk to her client. That wasn’t her standing up here


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United States v. Diaz, No. 02-0513/AR


            saying “I know he did it.” I’ll give a limiting
            instruction. I just wanted to clarify what you were
            talking about.

      The military judge provided the following limiting

instruction concerning Ms. Amlin’s testimony:

            Members of the court, yesterday afternoon you
            heard the testimony of Ms. Reagan Amlin. She
            testified about her four sessions with Specialist
            Diaz. She testified that during one or more of
            the sessions, she told Specialist Diaz that she
            either didn’t believe him, or she confronted him
            with her thoughts that a crime was committed.
            You members, as the voice of the community, have
            to decide the issues in this case based upon the
            evidence that’s presented to you in court.
            Nobody can tell you what happened. That’s your
            job and there are no shortcuts. There is no
            witness that can tell you that a crime occurred;
            that’s your job to determine that issue.

            So to the extent that you believe that Ms. Amlin
            testified or implied that she believed that
            Specialist Diaz committed a crime, committed a
            murder, committed an intentional burn, you may
            not consider that as evidence that a crime
            occurred, because that’s your job. She used that
            technique during her therapy to talk with the
            client. Do you understand what I’m telling you
            here? You’ve got to make the decisions in this
            case, and there’s nobody that can shortcut your
            job, although I’m sure that would make it easier
            for you.

The members indicated they understood the instruction.

                   B. Dr. Stuemky’s testimony
      During a session pursuant to Article 39(a), UCMJ, 10 U.S.C.

§ 839(a) (2000), defense counsel requested that Dr. Stuemky be

instructed not to mention uncharged misconduct beyond the

Government’s notice pursuant to Military Rule of Evidence 404(b)

[hereinafter M.R.E.].      Defense counsel also sought to prevent Dr.

Stuemky from stating that, in his opinion, Nicole’s death was a

homicide, and from stating whether the Death Review Board had

determined that it was child abuse or a homicide.


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United States v. Diaz, No. 02-0513/AR


      The military judge ruled that the doctor could testify as an

expert on the ultimate issue, that Nicole’s death was a homicide,

and that he could, with some limitations, testify generally about

the nature and function of the Death Review Board.          In making his

ruling the judge stated:


                 Concerning the defense's objection to the
            testimony of Dr. Stuemky as to the ultimate
            issue, I'm denying that motion in limine. I find
            that his testimony, given the case to this point,
            is material, and I believe it's probative. I
            believe he has the qualifications to do it, from
            what I've been told by counsel. I believe that
            the information he relied upon is information
            that would put him in a unique position to be
            able to make that determination. Applying a[n]
            [M.R.E.] 403 balancing test, I find that the
            probative value of the evidence is not
            substantially outweighed by the likelihood of
            harm to the accused.

                 Concerning his testimony about this [Death
            Review Board], I'm going to allow him to testify
            about the [Death Review Board], why it was
            created, what they do. I'm not going to let him
            talk about any statistics concerning the [Death
            Review Board], as to how many times they're
            correct, or how many times they're wrong, or
            anything like that. I will allow him to testify
            about his background with the [Death Review
            Board], how many investigations he's conducted
            and he's been involved in.
                 Concerning his testimony about the basis for
            his determination, I believe he has a sufficient
            basis to form the opinion that he's going to
            offer. I would tell the defense, however, that
            depending on what their cross is, and how they
            attack him, you may open the door as to his
            testifying about other evidence that he
            considered.

      Government counsel represented to the court that he would

speak with Dr. Stuemky to “make it very clear to him as to what

[he] can or cannot testify to.”          Also, immediately before Dr.

Stuemky’s testimony, the judge gave the limiting instruction



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United States v. Diaz, No. 02-0513/AR


regarding the limitations on Ms. Amlin’s testimony including the

admonition, “There is no witness that can tell you that a crime

occurred.”

      Dr. Stuemky testified about his role in the Child Protection

Committee and his initial involvement with Nicole.       He explained

that he had examined Nicole after she had been burned in January

1993.   He first testified regarding her injuries.      He told the

panel that he noticed the bruises on Nicole’s face and her

fractured posterior ribs.       He explained the significance of these

injuries in children and opined that in small children the only

cause of posterior rib fractures is child abuse.

      Next, Dr. Stuemky testified about his involvement in the

review of Nicole’s death by the Death Review Board.       He explained

how the Death Review Board obtained and evaluated all the

information relating to Nicole’s early injuries including her

burn and information relating to her death.       He testified in

detail about SIDS.      He explained that the National Institutes of

Health has defined SIDS as “a sudden, unexplained death in an

infant under 12 months of age in whom an autopsy has in fact been

performed, and no other cause or abnormalities are noted, and in

whom an adequate death scene investigation has been performed;

and in whom all associated records and that sort of thing are

evaluated by the appropriate agencies.”       He stated that “SIDS is

primarily an event that occurs in infants under 6 months of age.

Ninety percent of SIDS deaths are under 6 months of age . . .

with the peak time of SIDS deaths between 2-4 months of age.”

      Interrupting the direct examination, the military judge

suggested taking a break.       After a few more questions, trial


                                        17
United States v. Diaz, No. 02-0513/AR


counsel acquiesced and requested a recess.          Before the trial

resumed and in an Article 39(a) session, the judge sua sponte

revisited his ruling on the limits of Dr. Stuemky’s testimony

stating:

            Earlier when I ruled about the ultimate
            conclusion, I want to make clear that you
            understand what my ruling is. My ruling is not
            that this witness can say, "Specialist Diaz
            murdered his daughter." My ruling does allow you
            to ask whether the injuries are consistent with a
            child abuse death; whether he has an opinion as
            to whether the injuries were caused by child
            abuse; whether he has an opinion as to whether
            this was a SIDS death, or inconsistent with a
            SIDS death. I'll let him do that. I want to
            make sure you understand that my ruling did not
            say that he could stand up there and point a
            finger at specialist Diaz and say, "He killed his
            daughter." Do you understand my prior ruling?

Assistant trial counsel responded that he understood the ruling.

      Dr. Stuemky then continued his testimony discussing the

factors the Death Review Board considers when evaluating a

possible SIDS death in general and the evidence relating to

Nicole’s death in particular.           Dr. Stuemky stated, “Our concern

is that something had to have caused this death.          And our concern

is that it’s most likely consistent with suffocation.”

      At this point, the following occurred in assistant trial

counsel’s questioning of Dr. Stuemky:

            Q.    Did you come to any conclusion with regard
                  to your review of Nicole’s death and the
                  reports?

            A.    Yeah, our Child Protective Team ---

            Q.    Did you come to any conclusions, sir, by
                  your review?

            A.    Yes, I did.

            Q.    What were your conclusions?



                                        18
United States v. Diaz, No. 02-0513/AR


            A.    My conclusions were that this was a
                  homicide death -- this was a physical
                  abuse death. And furthermore, I felt
                  that the perpetrator was the father.

Assistant defense counsel immediately asked for an Article 39(a)

session.    In closed session, the defense asserted the following:

            Your Honor, we move for a mistrial, that’s strike
            three. That’s the third time we have moved in
            limine to exclude testimony from a government
            witness that . . . blurted it out. Your Honor,
            this is particularly disturbing because you
            specifically told [Government counsel] that the
            witness could not say that. We move for an
            immediate mistrial.

Trial counsel responded.

            Yes, sir, we object to moving for a mistrial.
            That was totally unexpected. I did, during the
            last recess, talk with Dr. Stuemky and gave clear
            instructions on what he could and could not say,
            and that was one of the matters that we spoke of.
            He could talk about exactly as you had instructed
            – prior to the last break, I went out and
            reiterated everything. I stated that he could
            say it was consistent with child abuse. Again,
            Your Honor, I did not expect that. I did
            instruct that witness he could not go there.

      Defense    counsel   responded,        “Your   Honor,   everybody

expected it.     We talked about it ahead of time.            Everybody

expected that.     That is highly prejudicial, Your Honor, and

there’s no way to cure it.”

      After an eleven minute recess, the military judge

immediately provided the following curative instructions to the

members:

                 Members of the court, early on in this trial
            and during the case on several occasions, I’ve
            told you that you have to decide the facts in
            this case, and you have to make a determination
            as to whether a crime occurred. You have to make
            a determination as to the believability or
            credibility of witnesses. And you have to follow
            my instructions . . . . [Y]ou all assured me that
            you could do that.


                                        19
United States v. Diaz, No. 02-0513/AR



                 I’m going to give you some instructions
            concerning expert testimony. An expert – a
            person is allowed to testify as an expert because
            his testimony may be helpful to you in coming to
            conclusions about issues. The witness you’ve
            been hearing has been qualified as an expert in a
            specific discipline because his knowledge, skill,
            experience, training or education may assist you
            in understanding the evidence, or in determining
            a fact in issue. But [t]he point is that you
            have to determine the fact in issue. Do you
            understand that?

            [Affirmative responses from the Members]

                 You are not required to accept the testimony
            of an expert witness or give it any more or less
            weight than that of an ordinary witness. But you
            should consider the expert’s experience and
            qualifications in the specific area.

                 Expert witnesses are allowed to render
            opinions, and those opinions are only allowed if
            they’re helpful to you, the fact finder. But
            again, bear in mind that you have the ultimate
            determination as to a conclusion about the issues
            in the case.

                 An expert cannot tell you that he thinks a
            crime occurred, because that’s not helpful to
            you, because you have to decide that. An expert
            witness cannot tell you that a witness is lying
            or truthful, or he cannot even tell you that a
            crime occurred. Because you have to decide that
            based on all the evidence, and only the evidence,
            that’s been presented in the courtroom. Do you
            understand that?

            [Affirmative responses from the Members]

                 To the extent that Dr. Stuemky opined that
            he thought a crime occurred, and that a
            particular specific person committed that crime,
            you cannot consider that, because that’s not
            helpful to you. You have to make that decision.
            Do you understand that?

            [Affirmative responses from the Members]

                 As I told you earlier this morning, there’s
            nobody that can help you in that regard, because
            you have to make your decision based on the
            evidence that’s presented to you here in court.
            Nobody else has the unique situation of being


                                        20
United States v. Diaz, No. 02-0513/AR


            present to hear all the evidence in court.   Do
            you understand what I’m telling you?

            [Affirmative responses from the Members]

                 I’m telling you that you must disregard any
            testimony about whether a crime occurred, or
            whether this soldier committed a crime. Do you
            understand that?

            [Affirmative responses from the Members]

                  And you can’t consider that for any reason
            during your deliberations. Do you understand
            that?

            [Affirmative responses from the Members]

                 I’ve gotten affirmative responses by every
            member to this point.

                 You can consider evidence that certain – as
            to an opinion about whether injuries were
            consistent with SIDS or not consistent with SIDS,
            or whether injuries were consistent with a child
            abuse-type death. But you cannot consider any
            testimony as to what this witness thought as to
            who did it. Do you understand that?

      The members indicated they would follow the instructions.

The judge then individually questioned each member as to whether

they could comply with the instructions.     Every member indicated

that they would follow the instructions.     At this point, without

other comment or ruling, the judge denied the defense motion for

a mistrial.

      However, this matter of Dr. Stuemky’s testimony was not

closed.   While the members were deliberating, assistant defense

counsel made the following request of the judge:

            I’d ask the court to recall Dr. Stuemky to testify
            outside the presence of the members as to why he
            intentionally disregarded a warning of the court and
            went beyond permissible testimony. I thought about
            this last night, Your Honor, and there’s really only
            two possibilities, either he wasn’t warned or he
            deliberately ignored that warning. [Government
            Counsel] has represented to the court -- and I have no


                                        21
United States v. Diaz, No. 02-0513/AR


            reason to doubt it -- that he warned Dr. Stuemky. If
            Dr. Stuemky deliberately ignored a warning of the
            court, the court ought to consider whether or not he is
            in contempt. I think he ought to be recalled for this
            purpose and he should be called to explain why he
            ignored explicit instructions from the court.

The military judge denied this request.          After deliberating for

almost six hours, the members convicted Appellant of both

offenses.

                              IV.   DISCUSSION
                               A.   The error

      The authority of expert testimony is well established.

Judge Wiss, speaking for this Court, identified the general

parameters in the evidentiary rules for the admissibility of

expert testimony.

                 Liberal standards for admissibility of expert
            testimony have been codified. [M.R.E.s] 702-05. Trial
            courts have seen, therefore, a veritable explosion in
            use of expert testimony. Our Court is concerned with
            the so-called "battle of the experts," which is a waste
            of time, unnecessary, or confusing. [M.R.E.] 403 is the
            appropriate tool for a military judge to use to handle
            this problem.

                 [M.R.E.s] 702-705 and 403 operate to establish a
            simple four-part test for admissibility of expert
            testimony: (1) Was the witness "qualified to testify as
            an expert"? (2) Was the testimony "within the limits of
            [the expert's] expertise"? (3) Was the "expert opinion
            based on a sufficient factual basis to make it
            relevant"?, and (4) "Does the danger of unfair
            prejudice created by the testimony outweigh its
            probative value?"

United States v. Banks, 36 M.J. 150, 160-61 (C.M.A.

1992)(citations and footnotes omitted).          These rules reflect the

intuitive idea that experts are neither omnipotent nor

omniscient.

      An expert witness may not opine concerning the guilt or

innocence of the accused.       See United States v. Birdsall, 47 M.J.


                                        22
United States v. Diaz, No. 02-0513/AR


404, 409 (C.A.A.F. 1998); United States v. Cacy, 43 M.J. 214, 217

(C.A.A.F. 1995); United States v. Suarez, 35 M.J. 374, 376

(C.M.A. 1992); United States v. Meeks, 35 M.J. 64 (C.M.A. 1992).
The analysis to M.R.E. 704 expressly states, “The Rule does not

permit the witness to testify as to his or her opinion as to the

guilt or innocence of the accused . . . .”       Manual for Courts-

Martial, United States (2002 ed.), Analysis of the Military Rules

of Evidence A22-50.

      The limits on expert opinion are rooted in recognition that

the expert lacks “specialized knowledge” to determine if the

victim or witness is telling the truth and respect for the

member’s exclusive function to weigh evidence and determine

credibility.    See Birdsall, 47 M.J. at 410.     The position of this

Court on these limitations is consistent with well-established

practice in federal civilian trial courts.       Id.

      The admonition we have provided in the prosecution of child

sexual abuse cases is equally applicable to the use of all

experts: “When using the testimony of expert witnesses . . .,

trial practitioners ‘must walk a fine line.’”       Cacy, 43 M.J. at
217-18 (citation omitted).       Condemning impermissible expert

opinion, this Court stated that such testimony that opines that a

crime has been committed and that a particular person did it

“crosses the line of proper medical testimony.”        Birdsall, 47

M.J. at 410 (error to opine that sons were “victims of incest by

their father”).

      It is clear to this Court, as it was to the trial judge and

the lower court, that the testimony of Dr. Stuemky was improper

when he opined that Nicole was the victim of a homicide and that


                                        23
United States v. Diaz, No. 02-0513/AR


Appellant was the perpetrator.          Diaz, 56 M.J. at 801.   Dr.

Stuemky improperly testified as to his opinion of the guilt of

Appellant.    Likewise, it is clear to this Court, as it was to the

military judge when he delivered his limiting instruction

following Ms. Amlin’s testimony, that her testimony was improper

to the extent that it implied her belief that Appellant murdered

Nicole.   This testimony usurped the panel’s exclusive function to

weigh evidence and determine guilt or innocence.          See id.
                              B.   The remedy

      In light of this error, the decisional issue before this

Court is the remedy: Could the trial proceed with a curative

instruction addressing Dr. Stuemky’s testimony, or was either a

full or partial mistrial a necessary remedy?          In this context, we

focus on the more egregious error resulting from Dr. Stuemky’s

testimony, and we consider the error as to Ms. Amlin’s testimony

in terms of its impact on the prejudice from Dr. Stuemky’s

testimony.

      Rule for Courts-Martial 915 (Mistrial) [hereinafter R.C.M.],

states in part:
            (a) In general. The military judge may, as a
            matter of discretion, declare a mistrial when
            such action is manifestly necessary in the
            interest of justice because of circumstances
            arising during the proceedings which cast
            substantial doubt upon the fairness of the
            proceedings. A mistrial may be declared as to
            some or all charges, and as to the entire
            proceedings or as to only the proceedings after
            findings.

      The discussion to R.C.M. 915(a) cautions that,

            The power to grant a mistrial should be used with
            great caution, under urgent circumstances, and
            for plain and obvious reasons. As examples, a
            mistrial may be appropriate when inadmissible


                                        24
United States v. Diaz, No. 02-0513/AR


            matters so prejudicial that a curative
            instruction would be inadequate are brought to
            the attention of the members[.]

       In United States v. Dancy, 38 M.J. 1 (C.M.A. 1993), this
Court recognized that a mistrial is an unusual and disfavored

remedy.   It should be applied only as a last resort to protect

the guarantee for a fair trial.          We explained:

            Declaration of a mistrial is a drastic remedy,
            and such relief will be granted only to prevent
            manifest injustice against the accused. It is
            appropriate only whenever circumstances arise
            that cast substantial doubt upon the fairness or
            impartiality of the trial.

Id. at 6 (citations and internal quotes omitted).

      A military judge has “considerable latitude in determining

when to grant a mistrial.”       United States v. Seward, 49 M.J. 369,

371 (C.A.A.F. 1998).      This Court will not reverse the military

judge’s decision absent clear evidence of abuse of discretion.

Dancy, 38 M.J. at 6; United States v. Rushatz, 31 M.J. 450

(C.M.A. 1990).     Our deference to the military judge’s decision on

a mistrial is consistent with other federal practice addressing

this matter as reflected in this statement by the First Circuit:
                 [T]he trial court has a superior point of
            vantage, and . . . it is only rarely — and in
            extremely compelling circumstances — that an
            appellate panel, informed by a cold record, will
            venture to reverse a trial judge’s on-the-spot
            decision . . . . [A] mistrial is viewed as a
            last resort, only to be implemented if the taint
            is ineradicable, that is, only if the trial judge
            believes that the jury’s exposure to the evidence
            is likely to prove beyond realistic hope of
            repair.

United States v. Freedman, 208 F.3d 332, 339 (1st        Cir. 2000)

(citations and internal quotes omitted).




                                        25
United States v. Diaz, No. 02-0513/AR


      The challenge for both the trial judge and the appellate

court is to determine the prejudicial impact of an error.          In

United States v. Pastor, Judge Cook focused on the difficulty of
this task stating,

            Assessment of the probable impact of inadmissible
            evidence upon the court members is always
            difficult. Sometimes an instruction to disregard
            the inadmissible evidence is sufficient assurance
            that it will not be weighed against the accused;
            other times the nature of the evidence is such
            that it is not likely to be erased from the minds
            of the court members. Each situation must be
            judged on its own facts.

8 M.J. 280, 284 (C.M.A. 1980).          Judge Cook concluded that this

judgment is rooted in a simple “tolerable” risk assessment that

the members would be able to put aside the inadmissible evidence.

Id.

      In the present case, the judge denied the defense motion for

a mistrial without stating on the record his findings of fact or

legal analysis to support this ruling.          However, the judge’s

actions in giving a curative instruction and conducting

individual voir dire reveal that he concluded that this remedial

action was sufficient to ensure that the members would be able to
put aside the inadmissible evidence.

      Considering the facts of this case, we conclude that the

military judge abused his discretion in his ruling that the

remedial action was sufficient and in refusing to declare a

mistrial.    The significance of this error is best revealed by

examining why a mistrial was necessary as to each charged offense

-- the murder of Nicole and the aggravated assault of Jasmine.




                                        26
United States v. Diaz, No. 02-0513/AR


                1.   Mistrial as to alleged murder of Nicole

                           a. Prejudicial impact of
                           the inadmissible evidence
      First, the judge misapprehended the prejudicial impact of

Dr. Stuemky’s inadmissible testimony.          The two central issues as

to Nicole’s death were the cause of her death (homicide or

natural causes) and, if homicide, the identity of the

perpetrator.    The prosecution asserted that Appellant murdered

Nicole by suffocation, relying primarily on the fact that

Appellant was alone with Nicole when she died and that Appellant

said she was not breathing when he got up from the couch.          In his

pretrial statements, Appellant adamantly and repeatedly denied

any culpability in her death.           The defense argued that Nicole’s

death was the possible result of SIDS.

      Dr. Stuemky was the key prosecution witness regarding both

these issues.     Because of his unique position at Children’s

Hospital and his involvement with Nicole’s case over several

years, Dr. Stuemky’s testimony was important in both breadth and

depth.   He opined that Nicole did not die a natural death, but
that her death was a homicide.          He based this conclusion on his

findings that her death was consistent with child abuse,

inconsistent with SIDS, and that the autopsy report was

consistent with the conclusion that she had been suffocated.            He

also expressly identified Appellant as the perpetrator.

      The significance of his improper testimony is clear from

several factors.     Dr. Stuemky had a unique, authoritative role in

this case as an expert witness.          His extensive experience and

multifaceted career in academia and medical practice, as well as



                                        27
United States v. Diaz, No. 02-0513/AR


his positions on the Child Protection Committee and the Death

Review Board, bolstered his credibility.       He was the principal

expert witness to establish the alleged pattern of abuse and to

rebut the defense argument that Nicole possibly died of SIDS.

Finally, the trial counsel repeatedly relied on Dr. Stuemky’s

testimony in opening statement and initial and rebuttal closing

arguments.    Building upon Dr. Stuemky’s credentials and

involvement in the case, trial counsel used his testimony to

provide details of injuries and abuse, to explain Nicole’s death,

and to establish a pattern of Appellant’s abuse of his daughters.

      We reject the lower court’s assertion that “there is less to

Dr. Stuemky’s statement than might appear at first blush.”         Diaz,
56 M.J. at 802.     The lower court reasoned that identity of the

perpetrator was not an issue in this case because of Appellant’s

pretrial admissions that he was alone with Nicole when she died.

The court further noted that Dr. Stuemky’s opinion was based on

the fact that Nicole did not die of natural causes.       Id.    Dr.

Stuemky’s testimony identifying Appellant as a perpetrator

violated a fundamental rule of law that experts may not testify
as to guilt or innocence.       His testimony was particularly

egregious as the defense filed a motion to exclude this

testimony, the judge expressly ruled that this testimony was

improper, and trial counsel stated he had informed the witness of

the judge’s ruling to limit the witness’s testimony.

      As the cause of Nicole’s death was a threshold issue before

the panel, Dr. Stuemky’s identifying Appellant as the perpetrator

could be viewed by the members as bolstering his assertion that

she was murdered and did not die a natural death.       See United


                                        28
United States v. Diaz, No. 02-0513/AR


States v. Boyd, 55 F.3d 667, 672 (D.C. Cir. 1995)(“[T]he jurors

may rely on the purported expertise of the Government witness to

cure the ambiguity that they face . . . . There would be little

need for a trial before a jury if an expert is allowed simply to

declare the defendant’s guilt.”).            Dr. Stuemky’s testimony was

presented as a definitive resolution of the issues of both cause

of death and identity of the perpetrator.            In this homicide

prosecution, the prejudicial impact of linking these two issues

was immediate, direct, and powerful, as it was an impermissible

expert opinion of Appellant’s guilt.

      Second, the judge failed to consider adequately the context

of Dr. Stuemky’s impermissible expert testimony.            Dr. Stuemky’s

inadmissible opinion testimony immediately followed the testimony

of Ms. Amlin that she “was convinced that he killed his

daughter.”    Although the judge instructed the panel not to

consider her belief that Appellant committed a crime, we consider

the juxtaposition of Dr. Stuemky’s inadmissible testimony and Ms.

Amlin’s testimony to have had a cumulative prejudicial impact on

the panel.    Regarding the other defense challenges to the

admission of Ms. Amlin’s testimony, we have assumed without

deciding, only for purposes of this appeal, that her testimony
was otherwise admissible.

                b.   Inadequacy of the curative instruction
      In light of these trial developments, we reject the judge’s

implicit ruling that a curative instruction could purge prejudice

from this error.     After Dr. Stuemky identified Appellant as the

murderer, the judge made a futile attempt to “unring the bell.”

See United States v. Armstrong, 53 M.J. 76, 82 (C.A.A.F. 2000)


                                        29
United States v. Diaz, No. 02-0513/AR


(citations omitted).      A curative instruction is the preferred

remedy, and the granting of a mistrial is an extreme remedy which

should only be done when “inadmissible matters so prejudicial

that a curative instruction would be inadequate are brought to

the attention of the members.”          R.C.M. 915(a) discussion.

Recently, this Court stated, “We have often held that a curative

instruction can render an error harmless.”          Armstrong, 53 M.J. at

82 (citations omitted).       However, in United States v. Rosser,
this Court reaffirmed that a curative instruction is not a

perfunctory exercise, stating:

            It is clear that the mantle of judicial
            discretion will not protect a decision based on
            the judge’s arbitrary opinions as to what
            constitutes a fair court-martial. Likewise, the
            military judge must engage in a sufficient
            inquiry as a matter of law to uncover sufficient
            facts to decide the issue before him.


6 M.J. 267, 271 (C.M.A. 1979).          We encourage voir dire to ensure

the members not only understand but also will adhere to the

curative instructions.      Under some circumstances, however, an

instruction followed by voir dire of the members does not cure

the prejudice toward the accused and the judge must grant a

mistrial.    In such instances, the judge’s failure to do so is an

abuse of discretion.

      Here, as in Armstrong, we have “grave doubts” about the

military judge’s ability to “unring the bell.”          We view the

instructions regarding the inadmissible evidence as both

inadequate and confusing.       Also, we do not consider that the

Government’s case was as strong as asserted by the lower court.




                                        30
United States v. Diaz, No. 02-0513/AR


      The instruction was inadequate and confusing in several

facets.   Given the inflammatory nature of Dr. Stuemky’s

impermissible testimony, the military judge should have

immediately instructed the members regarding the impropriety of

Dr. Stuemky’s testimony that Nicole was murdered and that

Appellant was the perpetrator.          Instead, the military judge then

surrounded his admonition not to consider Dr. Stuemky’s

impermissible testimony with an instruction telling the members

how powerful expert testimony is and an explanation that the

impermissible portion of Dr. Stuemky’s testimony was “not

helpful.”    In this context, the impact of the military judge’s

admonition not to consider the impermissible portion of Dr.

Stuemky’s testimony was significantly diluted.

      Furthermore, the instruction was confusing because it failed

to provide proper guidance for the panel’s deliberations.         We

note that the instruction was inconsistent with the prior ruling

of the judge as to the scope of Dr. Stuemky’s testimony.

Initially, the judge ruled, outside of the presence of the

members, that Dr. Stuemky could testify that Nicole’s death was a

homicide.    He also ruled that Dr. Stuemky could testify that the

injuries were caused by child abuse.         However, when the judge

provided the curative instruction to the members, the judge

stated that Dr. Stuemky could not opine that a crime occurred.

In light of the judge’s ruling and the testimony at trial, the

judge had an obligation to be specific and precise.         His failure

to do so here rendered the instruction ineffective.         See United
States v. Jackson, 6 M.J. 261, 263 n.5 (C.M.A. 1979); United

States v. Groce, 3 M.J. 369, 370-71 (C.M.A. 1977).


                                        31
United States v. Diaz, No. 02-0513/AR


       Finally, we doubt the efficacy of the curative instruction.

Instructed contemporaneously with the testimony of Ms. Amlin and

Dr. Stuemky, the panel was given a confusing mixed signal.

Despite instructions that witnesses could not testify that the

accused committed a crime, the panel heard both witnesses plainly

identify Appellant as the perpetrator of a murder.          The members

could hardly appreciate the gravity of the error or the

importance of the limiting instructions where it appeared that

such testimony was permissible.          There are situations where the

judge can “unring the bell” but we do not believe he did so in

this instance.

                     c. Consideration of other evidence
                     including the uncharged misconduct

      We do not evaluate these trial developments in a vacuum, but

are compelled to consider all the evidence in measuring the

impact of any error.      Accordingly, we next consider all the

evidence in the process of evaluating whether the limiting

instructions provided an adequate remedy.          See United States v.
Weeks, 20 M.J. 22, 25 (C.M.A. 1985).
      Although Appellant asserted he was alone with Nicole at the

time of her death, in his pretrial statements Appellant

repeatedly denied his culpability.           There were no eyewitnesses to

Nicole’s death.     There was no forensic evidence that directly

implicated Appellant in the death of the child.          The autopsy

report listed the cause of death as unknown.

      The prosecution’s case was built on circumstantial evidence.

The linchpin of this case was the prosecution’s strategy to

establish a pattern of abuse by Appellant against his infant


                                        32
United States v. Diaz, No. 02-0513/AR


daughters.    The lower court also relied on the “doctrine of

chances” as a theory to implicate Appellant.    See Diaz, 56 M.J.

at 802 (quoting United States v. Tyndale, 56 M.J. 209, 213
(C.A.A.F. 2001)(it “is unlikely a defendant would be repeatedly,

innocently, involved in similar, suspicious circumstances.”)).

To support this pattern of abuse theory, the prosecution relied

upon prior acts of uncharged misconduct relating to injuries to

Nicole.   Therefore, we will carefully examine the uncharged

misconduct evidence.

      Recently, in United States v. Humpherys, this Court

summarized the legal requirements and test for the admissibility

of uncharged misconduct stating in part:

           "[E]vidence which is offered simply to prove that
       an accused is a bad person is not admissible" under
       [M.R.E.] 404(b), Manual for Courts-Martial, United
       States (2000 ed.). United States v. Reynolds, 29 MJ
       105, 109 (CMA 1989). [M.R.E.] 404(b), however, is a
       rule of inclusion, not exclusion. "[T]he sole test
       under [M.R.E.] 404(b) is whether the evidence of the
       misconduct is offered for some purpose other than to
       demonstrate the accused’s predisposition to crime
       . . . ." United States v. Tanksley, 54 MJ 169, 175
       (2000)(quoting United States v. Castillo, 29 MJ 145,
       150 (CMA 1989)). As the Supreme Court stated when
       speaking of [M.R.E.] 404(b)'s counterpart,
       Fed.R.Evid. 404(b): "The threshold inquiry a court
       must make before admitting similar acts evidence
       under Rule 404(b) is whether that evidence is
       probative of a material issue other than character."
       Huddleston v. United States, 485 U.S. 681, 686, 108
       S.Ct. 1496, 99 L.Ed. 2d 771 (1988). In addition to
       having a proper purpose, the proffered evidence must
       meet the standards of [M.R.E.] 104(b), 402, and 403.
       See Reynolds, 29 MJ at 109.

           Reflecting the combined requirements of these
       rules, our Court applies a three-pronged test for
       determining admissibility of other-acts evidence
       under [M.R.E.] 404(b). See id. We evaluate: (1)
       whether "the evidence reasonably supports a finding
       by the court members that appellant committed prior
       crimes, wrongs or acts"; (2) "[w]hat fact of
       consequence is made more or less probable by the


                                        33
United States v. Diaz, No. 02-0513/AR


       existence of this evidence"; and (3) whether "the
       probative value [is] substantially outweighed by the
       danger of unfair prejudice[.]" Id. (internal
       quotations, ellipses, and citations omitted); see
       also Tanksley, 54 MJ at 176-77. "If the evidence
       fails any of the three tests, it is inadmissible."
       United States v. Cousins, 35 MJ 70, 74 (CMA 1992);
       accord Reynolds, 29 MJ at 109.

57 M.J. 83, 90-91 (C.A.A.F. 2002) (footnote omitted).

      The uncharged misconduct evidence related to alleged abuse

of Nicole and included leg and rib fractures, bruises, and the

burn to her face.     Under the three-pronged test set forth in

Reynolds, we hold that the military judge abused his discretion
by admitting all the uncharged misconduct.          Under the

circumstances of the case, the prejudice from this error

exacerbated the prejudice from Dr. Stuemky’s testimony.

      The trial evidence was insufficient to establish that

Appellant inflicted the leg and rib fractures and the bruise to

Nicole’s chest.     There is minimal evidence to establish when and

how Nicole suffered the fractured ribs, broken leg, and the

bruise to her chest.      Also, there was no evidence to establish

who was culpable for the injuries.           While Appellant had access to
Nicole, he was by no means the only one with the opportunity to

inflict these injuries.       Appellant’s wife was the primary

caregiver and testified that other people had access to Nicole,

including several babysitters and Appellant’s younger brother.

The Government’s written response to the defense motion to

suppress this evidence effectively conceded the lack of proof to

implicate Appellant in those injuries.          Trial counsel stated,

“Evidence of the broken bones and bruises is not being offered to

show that the accused actually caused these injuries, but to



                                        34
United States v. Diaz, No. 02-0513/AR


explain the reasoning behind Dr. Stuemky’s opinion that Nicole

was an abused child.”      In essence, we view all the factors relied

on by the prosecution as “rather generic” rather than “highly

probative of identity.”       See United States v. Ferguson, 28 M.J.

104 (C.M.A. 1989).

      We recognize that “when the crime is one of infanticide or

child abuse, evidence of repeated incidents is especially

relevant because it may be the only evidence to prove the crime.”

United States v. Woods, 484 F.2d 127, 133 (4th Cir. 1973).
However, there must be sufficient evidence to establish

Appellant’s culpability regarding an incident of alleged

misconduct in order to establish the relevance of that incident.

Each alleged incident of uncharged misconduct must pass through

the “Reynolds filter.”      The prosecution cannot merely lump

together a series of incidents and assert that together they

establish Appellant committed each act of abuse.      Although the

standard for the first prong of the test for admissibility of

uncharged misconduct is low, we find that standard was not met

here.   United States v. Browning, 54 M.J. 1, 6 (C.A.A.F. 2000).
It was error to admit evidence regarding the broken bones and the

bruise to Nicole’s chest, as the evidence fails to meet the first

prong of the Reynolds test.

      Furthermore, regarding the uncharged misconduct of the burn

to Nicole, we note that the defense supported its explanation of

this incident as an accident by presenting testimony from the

chairman and Chief Executive Officer of the vaporizer

manufacturer.     He testified by stipulation that he had “received

complaints from customers who were burned by the steam coming out


                                        35
United States v. Diaz, No. 02-0513/AR


of one of [his company’s] steam vaporizers.       [He has] even burned

[himself] several times accidentally by allowing [his] arm to go

through the steam coming from a vaporizer.”

      We reject the prosecution’s assertion that this incident is

relevant under prong two of Reynolds to the charged offense of

Appellant murdering Nicole.       With regard to the murder charge,

Appellant asserted that Nicole died from unexplained

circumstances.     Appellant did not assert that he had done any act

that caused harm to Nicole.       He did not assert either accident or

mistake.    Appellant’s defense was a general denial.

      The prosecution attempted to “create an act by Appellant,”

an accidental injury to Nicole, and then to rebut it by offering

uncharged misconduct.      The root of the problem with this

prosecution strategy is that there was no fact of consequence or

act of Appellant for the prosecution to rebut or explain.       The

prosecution was not permitted to “create an act by Appellant” and

then to offer uncharged misconduct evidence to rebut or explain

it.   See United States v. Graham, 50 M.J. 56 (C.A.A.F. 1999).
Simply stated, the prosecution cannot introduce uncharged
misconduct to rebut a defense that was never raised or presented

by the defense.     Such evidentiary bootstrapping is not permitted.

See United States v. Maxwell, 21 M.J. 229, 230 (C.M.A.

1986)(“[T]he prosecution cannot turn a defense witness into a

character witness through cross-examination and, thereby,

bootstrap otherwise inadmissible evidence into the case.”);




                                        36
United States v. Diaz, No. 02-0513/AR


Ferguson, 28 M.J. at 109 (“Two bodies of otherwise inadmissible

testimony cannot bootstrap each other into admissibility.”).3

      Finally, in light of the egregious error in Dr. Stuemky’s

testimony and the related error in Ms. Amlin’s testimony, in the

context of the prosecution strategy of relying on a pattern of

abuse, we have grave doubt that the panel could separate and

fairly consider the uncharged and charged misconduct.    Under the

prosecution theory, these events of uncharged and charged

misconduct were inextricably intertwined.    This draws into

question whether a panel could disregard Dr. Stuemky’s expert

testimony that Appellant murdered Nicole but consider, for the

proper purpose only, the uncharged evidence of Appellant’s

abusing her.

      As a result of the exposure of the members to Dr. Stuemky’s

powerful expert testimony that Appellant murdered his daughter,

we are left with grave doubt that the panel could fairly evaluate



3
  We disagree with the assertion in the separate opinion that
this case is similar to Estelle v. McGuire, 502 U.S. 62 (1991).
In our view, the nature, quantum, and quality of the evidence of
intentional physical abuse in McGuire was significantly different
from this case. Most importantly, McGuire is not a valid
precedent for deciding an issue involving Military Rule of
Evidence 404(b). McGuire involved a petition for habeas corpus.
The Supreme Court specifically declined to decide whether the
California courts correctly applied the rules of evidence,
holding that review of the evidentiary question “is no part of a
federal court’s habeas review of a state conviction.” 502 U.S.
at 67. The only question addressed by the Supreme Court was
whether the trial judge’s ruling on the admissibility of “bad
acts evidence” and the limiting instruction regarding that
evidence “so infected the entire trial that the resulting
conviction violated due process.” Id. at 72 (quoting Cupp v.
Naughten, 414 U.S. 141, 147 (1973)). The Supreme Court resolved
this narrow constitutional issue against the petitioner without
deciding the evidentiary issue.



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United States v. Diaz, No. 02-0513/AR


the uncharged misconduct evidence.           Simply stated, we believe

that the panel’s hearing Dr. Stuemky’s testimony so fueled the

prejudicial impact of the uncharged misconduct evidence that it

rendered it inadmissible under the third prong of Reynolds.

Accordingly, we hold that the evidence of uncharged misconduct

was inadmissible for the purpose of showing a pattern of abuse.

We express no opinion as to whether the evidence of prior

uncharged acts might be otherwise admissible for another purpose

at a rehearing.

      Without the uncharged misconduct, the Government’s case is

substantially weakened.       Even assuming, however, that the prior

acts evidence was admissible under M.R.E. 404(b), the strength of

the Government’s case remains questionable.           Therefore, our view

of the entire case confirms our conclusion that it was error for

the judge to deny the defense motion for a mistrial with regard

to the alleged homicide.

        2.   Mistrial as to alleged aggravated assault of Jasmine
      The R.C.M.s specifically authorize a judge to declare a

mistrial as to only some of the proceedings.           See R.C.M. 915.
This Court also has sanctioned this remedy.           See Rosser, 6 M.J.

at 270-71.    However, in the present case, we are not faced with

the situation where the judge granted a partial mistrial and

dismissed the murder charge.        On the contrary, Appellant’s trial

proceeded on both charged offenses.           Having concluded that a

mistrial as to the murder charge was required, we are left with

the question of whether the members could fairly decide whether

Appellant committed an alleged aggravated assault by

intentionally burning Jasmine.


                                        38
United States v. Diaz, No. 02-0513/AR


      As Appellant admitted burning Jasmine, the panel decision

regarding this offense boiled down to one issue -- was the burn

an intentional act or accident?           The focus of our inquiry,

therefore, is how Dr. Stuemky’s testimony labeling Appellant as

Nicole’s murderer impacted the panel’s eventual decision.

      As we evaluate the impact of Dr. Stuemky’s testimony in the

context of this case, as exacerbated by Ms. Amlin’s improper

testimony and by the evidence of uncharged misconduct, we again

focus on the prosecution strategy to use both the charged and

uncharged misconduct to establish a pattern of abuse by Appellant

against his infant daughters.           While the record reveals this

strategy permeated the prosecution’s case, the primacy of this

strategy is reflected in the opening line of the prosecutor’s

rebuttal argument, “Members of the panel, there is a pattern

here.”   Nowhere is this pattern of abuse strategy more evident

than in this argument when assistant trial counsel responded to

the defense assertion that there was no intentional assault of

Jasmine.    Assistant trial counsel stated to the members, “Anyone

of us can look at this picture and see the evidence of abuse

[Prosecution Exhibit 10].”       To illustrate his point, trial

counsel showed the members the picture of Nicole’s burn,

Prosecution Exhibit 10, rather than the picture of Jasmine’s

burn, Prosecution Exhibit 3.        This example illustrates how the

prosecution interwove the two charged offenses and alleged

uncharged misconduct to accomplish the prosecution strategy of

establishing Appellant’s pattern of abuse.

      Similarly, the lower court recognized the prosecution’s

strategy and expressly relied on evidence of Appellant’s pattern


                                        39
United States v. Diaz, No. 02-0513/AR


of abuse to sustain the findings.            Diaz, 56 M.J. at 798.   The

lower court’s reliance on this evidence supports our view that

the prosecution of these two offenses was inextricably

intertwined.

      Another important trial development we have considered was

the improper testimony of Dr. Tremaine, with regard to Jasmine’s

burn, that Appellant was “listed as the prime perpetrator, or the

perpetrator, of this non-accidental trauma.”            The admission of

this evidence was plain error.          See Birdsall, 47 M.J. at 409-10.
This error, in light of Dr. Stuemky’s and Ms. Amlin’s

inadmissible testimony, further calls into question the fairness

of this trial.     This fact of a third witness identifying

Appellant as the perpetrator in the other charged offense, the

burn to Jasmine, raises the question of how many times this Court

will permit the prosecution to “ring the bell.”            We simply

conclude we cannot condone this error for a third time.

      This inadmissible evidence from Dr. Stuemky, Dr. Tremaine,

and Ms. Amlin magnified the impact of these errors on the members

in a case where the panel requested clarifying instructions from
the judge and deliberated on findings for almost six hours.             Each

evidentiary error was significant, and together they denied

Appellant a fair trial.       See Birdsall, 47 M.J. at 410 (plain

error for expert to act as human lie detector); United States v.

Garza, 608 F.2d 659, 664-66 (5th Cir. 1979)(it was plain error

for the prosecutor to “testify” as an expert witness and opine in

closing argument as to the guilt or innocence of the accused);

but see United States v. Waldman, 310 F.3d 1074, 1078 (8th             Cir.

2002)(where there was substantial evidence of guilt, no plain


                                        40
United States v. Diaz, No. 02-0513/AR


error for expert to opine that accused “had an intent to kill a

policeman.”).

      In making this decision, we again specifically consider if

the uncharged misconduct relating to Nicole’s burn and the other

evidence implicating Appellant in Jasmine’s burns render harmless

any error in the admission of Dr. Stuemky’s testimony.          In so

doing, we again conclude that the uncharged misconduct relating

to Nicole’s burn would be inadmissible.          The panel’s hearing Dr.

Stuemky’s testimony so exacerbated the prejudicial impact of the

uncharged misconduct evidence relating to Nicole’s burn that it

rendered this evidence inadmissible under the third prong of

Reynolds.    Viewing the case as it was prosecuted, we find the
circumstances and context of this serious error cast substantial

doubt upon the fairness and impartiality of the trial.          We are

left with grave doubt that the members could fairly and

impartially decide whether Appellant committed an alleged

aggravated assault on Jasmine by intentionally burning her.          This

decision is rooted in our understanding of human nature and the

purpose of a criminal trial.        There are limits to what a panel
can be expected to disregard.           The human mind of a member is not

a blackboard where the judge, by a curative instruction, can

irrevocably erase powerful inadmissible evidence.

      We do not believe that the members could have put out of

their minds that three witnesses labeled Appellant guilty of the

charged offenses.     While we have acknowledged the evidence

implicating Appellant, we reaffirm that guilt is established only

by a fair trial.     In the present case, Appellant was denied a

fair trial.    A partial mistrial is not an appropriate remedy in


                                        41
United States v. Diaz, No. 02-0513/AR


this case.    See United States v. Harriston, 329 F.3d 779, 789

(11th Cir. 2003).

      In summary, we hold that the trial judge erred in not

granting a mistrial as to both charged offenses.      Similarly, the

Court of Criminal Appeals erred in affirming the findings and

sentence.

                                  Decision

      For these reasons, the decision of the United States Army

Court of Criminal Appeals is reversed.       The findings and sentence

are set aside.     A rehearing is authorized.




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United States v. Diaz, No. 02-0513/AR


                                 Appendix A




                                        43
United States v. Diaz, No. 02-0513/AR


     CRAWFORD, Chief Judge (concurring in part and dissenting in

part):

                           Introduction

     To reach its desired result on the key issue, the majority

concludes that all the evidence of Appellant’s prior abuse of

Nicole was inadmissible under Military Rule of Evidence 404(b)

[hereinafter M.R.E.].   Yet Huddleston v. United States, 485 U.S.

681 (1988), and Estelle v. McGuire, 502 U.S. 62 (1991), make

clear that M.R.E. 404(b) is a rule of inclusion, not a rule of

exclusion, and that under this rule, the evidence of Appellant’s

prior abuse of Nicole was admissible.

     In Huddleston, the Court noted:

     Article IV of the Rules of Evidence deals with the
     relevancy of evidence. Rules 401 and 402 establish
     the broad principle that relevant evidence — evidence
     that makes the existence of any fact at issue more or
     less probable – is admissible unless the Rules provide
     otherwise.

485 U.S. at 687.   The Court also quoted the Rules Advisory

Committee, which

     specifically declined to offer any “mechanical solution” to
     the admission of evidence under 404(b). Rather, the
     Committee indicated that the trial court should assess such
     evidence under the usual rules for admissibility: “The
     determination must be made whether the danger of undue
     prejudice outweighs the probative value of the evidence in
     view of the availability of other means of proof and other
     factors appropriate for making decisions of this kind under
     Rule 403.”
United States v. Diaz, No. 02-0513/AR


Id. at 688 (citations omitted).        The majority, however, ignores

and distorts Huddleston, as well as McGuire, with the end result

that future child abuse prosecutions may now be more difficult

in the military justice system than in the civilian criminal

justice system.

       Even so, I agree with the majority that it was error for

Dr. Stuemky to testify -– contrary to the military judge’s

express instructions -- that he believed Appellant killed

Nicole.   Likewise, I also agree that to the extent Ms. Amlin

similarly testified, that too was error.1          See United States v.

Douglas, 57 M.J. 270, 271-72 (C.A.A.F. 2002)(unclear if military

judge’s redaction order was followed by counsel).            Unlike the

majority, however, I conclude these errors did not substantially

influence the members’ findings of guilty in light of: (1) the

undisputed facts surrounding Nicole’s death; (2) the admissible

portions of Dr. Stuemky’s and other expert testimony concerning

the cause of Nicole’s death; (3) the admissible evidence of

Appellant’s prior abuse of Nicole and subsequent abuse of

Jasmine; (4) Appellant’s admissions to Ms. Amlin and his

resulting loss of credibility; and (5) the military judge’s


1
  Throughout this opinion, I speak only in terms of Dr. Stuemky’s improper
testimony. Nonetheless, to the extent others also testified improperly, I
find that harmless too, for the same reasons I find Dr. Stuemky’s improper
testimony harmless.




                                      2
United States v. Diaz, No. 02-0513/AR


curative instructions.   See United States v. Armstrong, 53 M.J.

76, 81 (C.A.A.F. 2000)(expert testimony that an accused

committed charged acts of abuse is error tested for

harmlessness); United States v. Charley, 189 F.3d 1251 (10th

Cir. 1999)(harmless error when several experts testified that

sexual abuse actually occurred or premised their testimony on

fact of actual abuse).

     For these reasons, I respectfully dissent.

                         Undisputed Facts

     At trial and on appeal, the Government and Appellant agreed

on every fact surrounding Nicole’s death -– except one.

Specifically, they both agreed that Appellant retrieved Nicole

from her crib and brought her into the living room.   They both

agreed Appellant’s wife was asleep in her bedroom at the time.

They both agreed Appellant laid Nicole across his lap as he sat

on the sofa.   They both agreed she was alive at the time.   They

both agreed no one else was in the room besides Nicole and

Appellant.   And they both agreed that Nicole passed from life to

death as she laid there in Appellant’s lap.

     The only thing they disagreed on was whether Nicole died

innocently of natural causes as she laid in Appellant’s lap, or

whether she died maliciously through suffocation as she laid in




                                 3
United States v. Diaz, No. 02-0513/AR


Appellant’s lap.   Either way, however, she died at the hands of

Appellant, and that was not, and is not, in dispute.

               Dr. Stuemky’s Inadmissible Testimony

     Dr. Stuemky was asked by the prosecutor: “Did you come to

any conclusion with regard to your review of Nicole’s death[.]”

In response, and contrary to express instructions from the

prosecutor at the request of the military judge, Dr. Stuemky

testified that “this was a homicide death . . . a physical abuse

death.   And furthermore, I felt that the perpetrator was the

father.”

     The express instructions he received were that he could

opine only that the death was “consistent with child abuse,” and

had he limited himself in that way, there would have been

nothing objectionable about his testimony.   See Charley, 189

F.3d at 1264 (no abuse of discretion allowing expert to “express

an opinion that the evidence is consistent or inconsistent with

the victim’s allegations of sexual abuse”); United States v.

Birdsall, 47 M.J. 404, 409 (C.A.A.F. 1998)(quoting United States

v. Whitted, 11 F.3d 782, 785 (8th Cir. 1993))(“A doctor can also

summarize the medical evidence and express an opinion that the

evidence is consistent or inconsistent with the victim’s

allegations of sexual abuse.”).




                                  4
United States v. Diaz, No. 02-0513/AR


     Before this Court, Appellant argues in Granted Issues I and

II that he was materially prejudiced by Dr. Stuemky’s improper

testimony, and that the military judge erred in not granting the

requested mistrial.   The majority agrees.   I, however, do not.

                            Discussion

     As a starting point, I note that Dr. Stuemky’s improper

testimony consisted of two parts.    The first was a conclusion

that in his opinion, “this was a homicide death . . . a physical

abuse death.”   The second was a conclusion that “the perpetrator

was the father.”   Importantly, however, given the undisputed

facts in this case, the second part of Dr. Stuemky’s testimony

(that Appellant was the killer) was superfluous because it added

nothing to what he already said with the first part of his

improper testimony (that the death was a homicide).    Everyone

agreed, including the defense, that Nicole died while in

Appellant’s hands and in the presence of no one else.    Thus,

identity was never an issue, and neither was the following,

undisputed reality: If Nicole’s death was a homicide, it was

Appellant who killed her.

     That being the case, once Dr. Stuemky testified that

Nicole’s death was a homicide, all the damage (if any) was done,

and no additional prejudice could result from his subsequent

testimony that Appellant was the one who killed her.    That




                                 5
United States v. Diaz, No. 02-0513/AR


testimony was nothing more than a redundancy, stating merely the

sole and obvious conclusion that flowed from the undisputed

facts in this case.   Thus, it appears that it is a majority of

this Court, not the military judge or the court below, that

“misapprehend[s] the prejudicial impact of . . . [the]

inadmissible testimony” by treating the issues of homicide and

identity as co-equal in this case.   __ M.J. at (27-29).   They

are not co-equal.   They are one and the same.

     Properly narrowed, Granted Issue I asks only whether Dr.

Stuemky’s single, impermissible statement that Nicole’s death

was a homicide -– as opposed to the permissible statement that

her death was consistent with child abuse -- substantially

influenced the members’ finding of guilty.   In light of the

other evidence in this case, Appellant’s complete lack of

credibility, and the military judge’s curative instructions, I

conclude that it did not, and that as a result, the military

judge did not abuse his discretion by not granting a mistrial

(Granted Issue II).

            Dr. Stuemky’s and Other Admissible Expert
                 Testimony on the Cause of Death

          As a member of Oklahoma’s Child Death Review Board,

Dr. Stuemky performed a thorough review of the circumstances

surrounding Nicole’s death.   That review led him to the




                                 6
United States v. Diaz, No. 02-0513/AR


following conclusions, to which he testified at trial: (1) there

was no “biological, anatomical, or toxicological” cause of

Nicole’s death; (2) Nicole was “way beyond” the age of Sudden

Infant Death Syndrome (SIDS); (3) as a result, her death was not

a “natural cause” death; and (4) her death was “consistent with

suffocation.”

     Specifically, Dr. Stuemky testified that SIDS is “defined

by the National Institutes of Health [(NIH)] in this country as

simply a sudden, unexplained death in an infant under 12 months

of age in whom an autopsy has in fact been performed, and no

other causes or abnormalities are noted[.]”   He further

testified as follows regarding SIDS:

     Twelve months – the absolute outer limits of 12 months
     was endorsed by the NIH. SIDS is primarily an event
     that occurs in infants under 6 months of age. Ninety
     percent of SIDS deaths are under 6 months of age, with
     the peak time of SIDS deaths between 2-4 months of
     age. SIDS is, very interestingly enough, uncommon in
     the first month of life. It’s not until after the
     first month of life that one begins to see SIDS
     deaths. By 6 months of age, 90 percent of all SIDS
     deaths have occurred that you’re going to see.
     Indeed, many people have felt that one shouldn’t call
     a SIDS death beyond 6 months of age. But the NIH
     finally felt that the consensus should be that the
     absolute, outer time limit for labeling a SIDS death
     was 12 months of age.

(Emphasis added.)   Nicole, of course, was 14 months old when she

died, which Dr. Stuemky testified was “very significant,”

because in the absence of a biological, anatomical,




                                 7
United States v. Diaz, No. 02-0513/AR


toxicological, or other identifiable cause of death, “we would

not consider this a natural cause of death . . . .    And our

concern is that it’s most likely consistent with suffocation.”

     Dr. Stuemky then made the following observation, which

every member of Appellant’s court-martial must also have known

through common sense and common experience: “Children just don’t

die suddenly laying on a parent’s lap.”   Certainly a reasonable

and experienced member of society knows that a healthy 14-month-

old child -- “way beyond” the age of SIDS -- does not just die

without a cause.   That is why I conclude on this record that

notwithstanding Dr. Stuemky’s inadmissible testimony, the

members would still have convicted Appellant based on the

strength of Dr. Stuemky’s admissible testimony, and the other

admissible evidence and testimony.

     Part of that other evidence and testimony came from Dr.

Balding, the medical expert who performed the autopsy on Nicole,

which he described as entailing the “opening of the body with

surgical incisions, including the head and examination of the

brain and all of the major internal organs.    Again, this is done

to look for evidence of injury or disease.    At this time also,

we take specimens such as blood, urine, or any other bodily

fluids which can be used for later drug analysis; that sort of

thing.   Also at this time, postage stamp-sized pieces of the




                                 8
United States v. Diaz, No. 02-0513/AR


major organs; these are then processed and examined under the

microscope at a later time.”   Based on this autopsy, Dr. Balding

testified Nicole’s heart, lungs, kidneys, and thyroid were all

“normal,” and that “as far as the internal organs go, there was

no evidence of injury or natural disease.”   He also testified

that Nicole’s brain was “normal” and “there was no evidence of

injury or disease to the brain.”

     As for the toxicological screen that was conducted, he

testified that “it was essentially negative, except there was

brompheniramine, which is an over-the-counter cold medication

[Dimetapp].   It was a very small amount that was present. . . .

[I]t was negative in terms of having any relation to causing the

death.”   Dr. Balding also testified there was no anatomical

cause of death and he “could find no cause of death of Nicole,”

but that the autopsy results were consistent with suffocation.

               Appellant’s Prior Abuse of Nicole and
                    Subsequent Abuse of Jasmine

     Death by suffocation as opposed to SIDS was also consistent

with Appellant’s prior and subsequent abuse of his children,

which was “proximate in time” to Nicole’s death and, along with

the other evidence in this case, “established that [Appellant]

had both the inclination and the opportunity” to seriously harm




                                   9
United States v. Diaz, No. 02-0513/AR


Nicole.   See Charley, 189 F.3d at 1271 (discussing relevance of

defendant’s prior abuse of victim).

     It is here, however, that several of the other Granted

Issues dovetail, because a good deal of the evidence of these

other instances of abuse came from statements Appellant made to

medical and social work personnel -- statements Appellant argues

were inadmissible because (1) these people did not read him his

rights before questioning or counseling him, and (2) he was

coerced into making some of the statements.   I therefore address

these arguments first, before further addressing the relevance

and admissibility of Appellant’s prior abuse of Nicole and

subsequent abuse of Jasmine.

               Questioning by Captain (CPT) Tremaine

     On October 13, 1995, Appellant’s nine-month-old daughter

Jasmine was referred to CPT Tremaine by Hawaii Child Protective

Services for evaluation of a three-month-old burn located on her

left inner thigh.   The evaluation was part of a Suspected Child

Abuse and Neglect (SCAN) work-up, and included CPT Tremaine

questioning both Appellant and his wife about the burn to help

him determine whether it resulted from an accidental or non-

accidental cause.   In addition, CPT Tremaine closely examined

the burn and conducted many other medical tests over almost a




                                10
United States v. Diaz, No. 02-0513/AR


week’s time in order to properly diagnose the cause of Jasmine’s

injury.

     Regarding the need for and importance of determining

whether the cause of the burn was accidental or non-accidental,

CPT Tremaine testified as follows:

     Our main concern as the physician is – we are the
     physician of that child. It is our job to protect that
     child. So in establishing the diagnosis of non-
     accidental versus accidental trauma, we are, in
     essence, protecting that child from potential future
     events.

     . . . .

     It has important bearing on the child. Children who
     are subject to non-accidental trauma are at greater
     risk for future episodes of non-accidental trauma.
     That has been proved over and over again. The only
     effective way to treat that is removal of the child
     from the house, or from the potential abusive
     situation.

CPT Tremaine also testified that questioning parents about the

causes and extent of their children’s injuries was standard

operating procedure, regardless of “whether it’s a diagnosis of

alleged child sexual abuse, or some other injury or disease[.]"

     Turning to CPT Tremaine’s actual questioning of Appellant,

CPT Tremaine did not read Appellant his rights beforehand, but

he did inform Appellant “[t]he purpose was for a SCAN work-up .

. . a ‘Suspected Child Abuse and Neglect’ work-up . . . to

establish a diagnosis and find out if there was accidental or




                               11
United States v. Diaz, No. 02-0513/AR


non-accidental trauma done[.]”   Moreover, although law

enforcement officers in plain clothes arrived after CPT Tremaine

began questioning Appellant, they only did so because as a

matter of protocol, they were notified a SCAN work-up was

underway; they never entered the room where CPT Tremaine and

Appellant were; they never questioned Appellant; they never

communicated with CPT Tremaine during the questioning; and they

never gave CPT Tremaine questions to ask Appellant.

     In these circumstances, Appellant agreed to answer CPT

Tremaine’s questions, and the statements he provided were used

against him at his court-martial over the defense’s objection.

The specific content of those statements I discuss more fully

infra.   For now, all that is needed is to decide whether CPT

Tremaine was required to read Appellant his rights under Article

31, Uniform Code of Military Justice [hereinafter UCMJ], 10

U.S.C. § 831 (2000), before questioning him.   Appellant argues

in Granted Issue III that CPT Tremaine was so required, and that

as a result, Appellant’s statements to him were inadmissible.

Appellant is mistaken.

                      Article 31(b) Warnings

     Article 31(b) provides:

          No person subject to [the UCMJ] may interrogate,
     or request any statement from an accused or a person
     suspected of an offense without first informing him of




                                 12
United States v. Diaz, No. 02-0513/AR


        the nature of the accusation and advising him that he
        does not have to make any statement regarding the
        offense of which he is accused or suspected and that
        any statement made by him may be used as evidence
        against him in a trial by court-martial.

The rationale behind Congress’s passage of Article 31(b) was

recently discussed in United States v. Swift, 53 M.J. 439, 445

(C.A.A.F. 2000), where we observed:

             In the armed forces, a person learns from the
        outset of recruit training to respond promptly to the
        direct orders and the indirect expectations of
        superiors and others, such as military police, who are
        authorized to obtain official information. Failure to
        respond to direct orders can result in criminal
        offenses unknown in civilian life . . . .

             In such an environment, a question from a
        superior or investigator is likely to trigger a direct
        response without any consideration of the privilege
        against self-incrimination. The Article 31(b) warning
        requirement provides members of the armed forces with
        statutory assurance that the standard military
        requirement for a full and complete response to a
        superior’s inquiry does not apply in a situation when
        the privilege against self-incrimination may be
        invoked.

See also United States v. Harvey, 37 M.J. 140, 143 (C.M.A.

1993).

        Thus, although by its terms, Article 31 seems to apply to

all questioning of suspects and accuseds by individuals subject

to the UCMJ,2 applying the rationale behind Article 31(b), our

Court has held that “this statute requires warnings only when


2
    There is no question that CPT Tremaine was a person subject to the UCMJ.




                                        13
United States v. Diaz, No. 02-0513/AR


questioning is done during an official law-enforcement

investigation or disciplinary inquiry.”   United States v.

Loukas, 29 M.J. 385, 387 (C.M.A. 1990).   Consequently, many non-

commanders and non-law enforcement personnel are not required to

administer Article 31(b) warnings before questioning service-

members.   See, e.g., United States v. Raymond, 38 M.J. 136

(C.M.A. 1993)(psychiatric social worker); United States v.

Moreno, 36 M.J. 107 (C.M.A. 1992)(state social worker); United

States v. Pittman, 36 M.J. 404 (C.M.A. 1993)(section leader/

friend).

     As a result, there is a long-standing principle that

questioning by medical personnel for the sole purpose of

diagnosis and treatment, even if a crime is suspected, does not

need to be preceded by Article 31 warnings.   See United States

v. Bowerman, 39 M.J. 219, 221 (C.M.A. 1994)(although doctor

suspected child abuse, questioning suspected parent without

Article 31 warnings was permissible “to ascertain the facts for

protective measures and curative purposes”); United States v.

Fisher, 21 C.M.A. 223, 225, 44 C.M.R. 227, 279 (1972)

(questioning by doctor for diagnosis not “within the reach of

Article 31”).

     In Bowerman, “a seriously injured baby . . . ‘was going

down the tubes very quickly’” when the questioning took place.




                                14
United States v. Diaz, No. 02-0513/AR


In Fisher, the accused “was in immediate danger of suffering

serious physical consequences” when he was questioned.     Thus, in

both cases, timing was important.     Absent immediate knowledge of

the cause of the injuries, effective treatment could be

compromised.

     In this case, there was no existing injury threatening

Jasmine at the time CPT Tremaine questioned Appellant.     Rather,

the questioning took place as part of an evaluation of a three-

month old burn.    Nonetheless, rights warnings were still not

required, because as the facts set forth above make abundantly

clear, CPT Tremaine was not acting in a law enforcement or

disciplinary capacity.    To the contrary, he was acting solely on

behalf of Jasmine, and solely in her best medical interests.

     Although there was no longer a threat to Jasmine from the

burn itself, the cause of the burn still had to be determined so

that, if necessary, CPT Tremaine and other medical and social

work professionals could take the steps required to effectively

prevent Jasmine from suffering the same type of physical injury

in the future.    Moreover, as CPT Tremaine indicated at trial,

such a procedure was nothing new.     Physicians always seek to

ascertain the cause of an injury in order to prevent similar

injury in the future; and they always seek that information from




                                 15
United States v. Diaz, No. 02-0513/AR


parents or guardians when injured children have not yet learned

to speak, as was the case with nine-month old Jasmine.

     Thus, CPT Tremaine’s questioning of Appellant was all about

Jasmine and her medical well-being (Bowerman’s “protective

measures”), and nothing about law enforcement or disciplinary

action against Appellant (which had not even begun).   The fact

that the suspected cause of Jasmine’s injury was criminal abuse

as opposed to some accidental or natural occurrence (diagnosis),

and the fact that the best way to prevent similar injury in the

future was to remove Jasmine from the home as opposed to

administer medicines or physical therapy (treatment), does not

negate that dispositive fact that in this case.

     That said, CPT Tremaine was not required to read Appellant

his rights before questioning him about the cause of Jasmine’s

injury.   This is so regardless of CPT Tremaine’s duty to advise

Child Protective Services (CPS) of the results of Jasmine’s SCAN

evaluation, and regardless of his duty to report suspected child

abuse to criminal authorities.   Bowerman, 39 M.J. at 222 (citing

Raymond, 38 M.J. 136)(such duties “[do] not transform [a medical

doctor] into a criminal investigator.”).

                     Counseling With Ms. Amlin

     When his evaluation was complete, CPT Tremaine determined

that Jasmine’s burn was a “classic branding injury” and was not




                                 16
United States v. Diaz, No. 02-0513/AR


accidental.    As a result, CPS removed Jasmine from Appellant’s

home.    About a year later, though, she was returned to the home,

with the condition that Appellant move out and not visit the

home while Jasmine was present, and the further condition that

Appellant successfully complete counseling before returning

permanently to the home.    All this took place in Hawaii.

     Complying with the CPS order, Appellant moved out of the

house.    However, sometime thereafter, he was transferred to Fort

Drum, New York, while his wife and Jasmine remained in Hawaii.

Once at Fort Drum, Appellant went to the Family Advocacy Program

seeking the counseling he needed to move back in with his

family.    In due course, his case was randomly assigned to a

civilian social worker named Ms. Amlin.    Prior to meeting with

Appellant, Ms. Amlin reviewed a letter from the Hawaiian

authorities that set forth the nature of the counseling

Appellant had to receive in order to rejoin his family.

Specifically, Appellant had “to take ownership of the abuse [of

Jasmine], to take responsibility for the abuse, to develop an

empathy and understanding of the enormity of the consequences to

the child – how it would impact the child psychologically.”

     Ms. Amlin met with Appellant four times, and although she

never read him his rights before these sessions, she did inform

him of her duty to disclose child abuse to both the military and




                                 17
United States v. Diaz, No. 02-0513/AR


civilian authorities.   Eventually, Ms. Amlin did contact the

authorities and inform them about instances of Appellant abusing

his children.   However, at no time during her sessions with

Appellant did she take any direction from any law enforcement

authority.   Moreover, no law enforcement authority attended any

of the sessions or directed that those sessions take place.

Everything that took place during those sessions took place

solely within the social work community, and in accordance with

that community’s standard operating procedures.

     During his counseling sessions with Ms. Amlin, Appellant

made statements that were used against him at his court-martial

over the defense’s objection.   Once again, the specific content

of those statements is not yet germane and will be discussed in

detail later.   For now, it is necessary only to decide whether

Ms. Amlin was required to read Appellant his rights before the

therapy sessions.   Appellant argues in Granted Issue IV that she

was and that, as a result, his statements to her were

inadmissible.   Appellant further argues that even if Ms. Amlin

was not required to read him his rights, his statements to her

were still inadmissible because they were coerced.   Appellant is

wrong.




                                18
United States v. Diaz, No. 02-0513/AR


                       Article 31(b) Warnings

     Although by its terms, Article 31(b) applies only to

someone “subject to the [UCMJ],” consistent with the rationale

behind its passage, it also applies to a civilian investigator

“(1) [w]hen the scope and character of the cooperative efforts

demonstrate that the two investigations merged into an

indivisible entity,” and “(2) when the civilian investigator

acts in furtherance of any military investigation, or in any

sense as an instrument of the military[.]”      United States v.

Penn, 18 C.M.A. 194, 199, 39 C.M.R. 194, 199 (1969)(internal

quotations omitted).   See M.R.E. 305(d).   However, just as with

military medical personnel, civilian medical personnel do not

have to give Article 31 warnings to patients when they are

acting “only in a legitimate medical capacity” and not “directly

or indirectly in any law enforcement or disciplinary capacity.”

United States v. Moore, 32 M.J. 56, 60 (C.M.A. 1991).

     As the facts in this case make clear, Ms. Amlin was not

acting in furtherance of any military or law enforcement

investigation, or as an accessory to any law enforcement effort.

Her role was solely that of a licensed social worker trying to

carry out the treatment plan mandated for Appellant.      As a

result, Ms. Amlin was not required to give appellant Article 31

warnings before the counseling sessions.    See Moreno, 36 M.J. at




                                 19
United States v. Diaz, No. 02-0513/AR


114-17 (no Article 31 warnings required when civilian social

worker who knew case was substantiated and “turned over to the

prosecutor’s office” conducted counseling sessions with accused

and urged him to admit his crimes as first step to recovery);

see also Raymond, 38 M.J. at 138-40; Moore, 32 M.J. at 60-61.

                      Army Regulation 608-18

     Appellant argues that Dep’t of the Army Regulation 608-18,

The Army Family Advocacy Program (Sept. 1, 1995) [hereinafter AR

608-18], required Ms. Amlin to administer Article 31 warnings

before her counseling sessions with Appellant.   Appellant is

incorrect.   In Raymond, this Court concluded that AR 608-18

     is a personnel regulation, not a law enforcement
     regulation. . . . It is not a law enforcement
     program; it is a community services program. The
     cooperative effort required by the regulation
     [e.g. – the reporting requirement] does not render
     every member of the military community a criminal
     investigator or investigative agent but, rather,
     merely ensures that the competing interests of various
     segments of the military community accommodate each
     other as much as possible.

38 M.J. at 138-39.   As a result, the Raymond Court held AR 608-

18 did not require a social worker similar to Ms. Amlin to

administer Article 31 warnings before counseling sessions

similar to those in Appellant’s case.

     The version of AR 608-18 in effect at the time Raymond was

decided is different from the version applicable in Appellant’s




                                20
United States v. Diaz, No. 02-0513/AR


case, but not significantly.   Both have reporting requirements,

and both have the following language:

          Except when not required by law . . . soldiers
     suspected of spouse or child abuse will be advised of
     their rights under Article 31, UCMJ, and of their
     right to counsel prior to being questioned about abuse
     offenses. Soldiers who are self-referrals will also
     be advised of their rights under Article 31, UCMJ, and
     of their right to counsel prior to being questioned
     about abuse offenses.

AR 608-18 at para. 3-21d (emphasis added); AR 608-18 at para.

3-24d (Sept. 18, 1987).   Thus, there is no reason to construe

the current version of AR 608-18 any differently than in Raymond

as it relates to the requirement of a rights warning before

therapeutic counseling sessions unrelated to law enforcement.

Such warnings are “not required by law,” because this Court has

consistently said they are not.    See Bowerman, 39 M.J. at 221;

Raymond, 38 M.J. at 138-39; Moreno, 36 M.J. at 117; Fisher, 21

C.M.A. at 225, 44 C.M.R. at 279.

                           Voluntariness

     Appellant also argues that regardless of whether Ms. Amlin

should have read him his rights, his admissions to her were

involuntary and, therefore, inadmissible because he was required

to attend those sessions and accept responsibility for the

injuries to Jasmine before he could be reunited with his family.

See Arizona v. Fulminante, 499 U.S. 279, 285-87 (1991)(totality




                                  21
United States v. Diaz, No. 02-0513/AR


of circumstances determines voluntariness of confession).     This

argument holds no sway in light of this Court’s clear precedent

to the contrary.

     In Moreno, the appellant was faced with a choice: he could

participate in counseling in an attempt to keep his family

together, with the result that anything he said might be used

against him at court-martial, or he could refuse to participate

in the counseling and risk losing his children.   He opted for

the former, and the foreseeable result came to pass -– he was

prosecuted and his statements were used against him.   On appeal,

he argued the “choice” he faced rendered his statements during

counseling involuntary.   This Court disagreed and said:

          It was something of a dilemma to be sure, but it
     was a dilemma of his own causing. When people abuse
     children in this society, two distinct processes are
     triggered. One is the criminal process, which focuses
     on the proper way to deal with the perpetrator. The
     other is the child-protective process, which focuses
     on the preservation of and best interests of the
     child-victim.

36 M.J. at 112.    The Court then concluded that nothing was done

within the child-protective process to make the appellant’s

statements involuntary (i.e., no “improper threats, inducements,

or promises”).

     Similarly, in United States v. Ellis, 57 M.J. 375 (C.A.A.F.

2002), detectives informed the appellant there was probable




                                 22
United States v. Diaz, No. 02-0513/AR


cause to arrest both him and his wife, and that if both were

arrested, their children would probably be removed from them and

placed in foster care.   Thereafter, the appellant indicated he

wanted to talk, waived his rights, and confessed to child abuse

crimes.    Once again, the appellant argued his confession was

involuntary because it was motivated by a desire to not lose his

family.    Once again, however, this Court disagreed and said:

          While the detectives’ advice to appellant
     concerning removing the remaining children from the
     home may have contributed to his confession, the mere
     existence of a causal connection does not transform
     appellant’s otherwise voluntary confession into an
     involuntary one.

Id. at 379 (citing Colorado v. Connelly, 479 U.S. 157, 164 n.2

(1986)).

     For the same reasons, Appellant’s statements and admissions

to Ms. Amlin were not constitutionally involuntary.   The fact

that Appellant was required “to take ownership of the abuse [of

Jasmine], to take responsibility for the abuse,” in order to get

Jasmine back does not lead to a different result.   Factually,

this is not that different from Moreno, where “[a]s a ‘first

step’ in his recovery, [the therapist] urged [the] appellant to

admit his conduct,” which the appellant did, and which helped

secure his conviction.   36 M.J. at 115.   Legally too, then, the

result in Appellant’s case is the same –- constitutionally




                                 23
United States v. Diaz, No. 02-0513/AR


voluntary statements, admissible against him as evidence of his

other abuse of Nicole and Jasmine.

               Appellant’s Prior Abuse of Nicole and
                    Subsequent Abuse of Jasmine

     Having disposed of the underlying Article 31 and

voluntariness issues, I now return to the relevance and

admissibility of Appellant’s prior abuse of Nicole and

subsequent abuse of Jasmine.   I deal first with his abuse of

Jasmine by intentionally burning her, and I do so because (1)

Appellant’s conviction for that offense is completely insulated

from any prejudice that possibly could flow from Dr. Stuemky’s

improper testimony, and (2) Appellant’s confessed reason for

committing that offense strengthens the conclusion that his

prior acts of abusing Nicole were relevant and admissible.

                        Jasmine’s Branding

     Regarding the scarring on Jasmine’s inner thigh, CPT

Tremaine (who evaluated the injury for purposes of the SCAN

work-up) gave expert testimony as follows:

     We saw a well-healed scar on . . . her upper thigh
     that had essentially a branding pattern to it,
     potentially three different distinct areas.

     . . . .

     It was a classic branding injury, where a hot object
     . . . [is] placed against the body and held there for
     a period, rendering a very distinct pattern, which




                                24
United States v. Diaz, No. 02-0513/AR


     based on the healing and scarring patterns, was
     consistent with three separate branding injuries.

(Emphasis added.)   This conclusion was confirmed by pictures of

the burn, admitted as Prosecution Exhibit 3.   Those pictures

disclose quite clearly -- in the words of CPT Tremaine -- a

“triangle” of scar tissue (i.e., “three separate branding

injuries”) with “a very distinct border” surrounding a “central

area” of “normal skin” that “wasn’t burned.”   In other words, “a

classic branding injury,” not an accidental burn from a lighter

falling one time onto Jasmine’s thigh.   See United States v.

James, 55 M.J. 297, 301 (C.A.A.F. 2001)(appellant’s admissions

supported by pictures in the record).

     More importantly, however, Appellant admitted that he

intentionally burned Jasmine.   CPT Tremaine testified that when

he asked Appellant how Jasmine was burned, Appellant

     reported that Jasmine had been laid down to sleep that
     night, and when he went in to look in on her, he
     noticed a centipede laying in her crib. He proceeded
     to obtain his lighter and to chase the centipede
     around the bed and try to burn the centipede. While
     he was doing that, he reported that he’d taken Jasmine
     into his wife’s – where his wife was, and his wife was
     in their bedroom. He went back, got Jasmine, went to
     the living room, reported lighting a cigarette and
     dropping the lighter on Jasmine’s leg.

Thereafter, Appellant repeated this lie to Ms. Amlin at the

beginning of their counseling sessions, but after several

additional sessions, he admitted intentionally burning Jasmine.




                                25
United States v. Diaz, No. 02-0513/AR


     Ms. Amlin testified as follows in response to questions

from the prosecution:

     Q: During that first session, what did [Appellant]
tell you about that burn?

     A: Initially, he indicated that he was with the baby
and he’d lit a cigarette, and had inadvertently dropped the
lighter onto the child, causing the burn. I indicated that
I felt that that probably wasn’t possible, considering the
lighter would have to be fairly hot, and just lighting a
cigarette would probably not cause that type of burn or
injury.

       Mr. Diaz then changed his account of the events and
indicated that there’d been an insect of some sort in the
crib, and he didn’t want it to bite the baby, so he was
trying to [d]estroy the insect with the cigarette lighter,
and while he was holding the baby and holding this lighter
on this bug, he dropped it and burned the child.

     Q: That was what [Appellant] told you during the first
session?

     A: Yes.

     Q: During the second session, did [Appellant] tell you
that story again?

     A: Initially, yes, he did. I confronted him that
again [sic]; it didn’t seem like a plausible story. I
recall asking him, “Why didn’t you just step on this
insect? Why didn’t you hit it with something? Why didn’t
you just lift the baby up and away from the insect?” It
seemed like an unusual way to go about protecting the child
from an insect bite. At that point, I asked him, “What
does DHS think? Do they think you did this on purpose?”
And he said, “They’d say I did it.” I said, “What would
your wife’s parents say?” And he said, “They’d say I did
it.” I then asked him what his parents would think about
this, what would they say caused this accident, and he
said, “They’d probably say I did it.” I then asked him,
“What’s the likelihood that you did it? What percentage
would you put on that you actually did this?” And he




                               26
United States v. Diaz, No. 02-0513/AR


looked at me and said, “One hundred percent.” At that
point, he started to tell me what had actually happened.

. . . .

     Q: Did you ask him how the injury to Jasmine occurred?

     A: Yes, I did.

     Q: What was [Appellant’s] response?

     A: He indicated that Mrs. Diaz was sleeping, it was
late at night, he’d taken Jasmine from the crib. He said
he was on the sofa watching television. He said he laid
her down, heated the lighter up, got it hot and placed it
on her thigh. When I asked him why he did that, he said,
“I wanted to see what she would do.”

(Emphasis added.)

     The majority concludes that even Appellant’s conviction for

burning Jasmine must be set aside as tainted by the improper

testimony in this case.    Yet how the majority reaches this

conclusion escapes me.    Appellant voluntarily confessed to Ms.

Amlin both this crime and his motive.    Furthermore, the expert

testimony of CPT Tremaine and the pictures of Jasmine’s scarred

leg corroborated this confession, and showed Appellant

steadfastly had lied quite implausibly about the cause of

Jasmine’s injury.

     In these circumstances, I conclude the improper testimony

at this trial in no way affected the members’ finding of guilty

to the aggravated assault of Jasmine.    I further conclude that

the strength of the evidence proving Appellant’s aggravated




                                 27
United States v. Diaz, No. 02-0513/AR


assault of Jasmine also made the evidence of Appellant’s prior

abuse of Nicole relevant and admissible.

             Nicole’s Burned Face and Other Injuries

     About a year before Nicole’s death, when she was only

several months old, she was taken to the hospital with second

and third degree burns on her face.    The intake worker at the

hospital that night testified Nicole “had a burn on her face, on

the left side, from just about her lip up to her hairline.”    The

intake worker also testified Nicole “had three small, round

bruises just below the burn on the left side of her face.”

     Nicole was treated by Dr. Oscar Falcon, who testified as

follows regarding what he saw:

     I saw a young child with 2nd and 3rd degree burns to
     the right – I’m sorry, to the left mid-face. The left
     eye, at that time, was swollen shut. . . . I also
     noted on the child that there were old bruises on the
     right cheek, and one on the right anterior chest.

As a result of this burn injury, two things took place.

Ultimately, Nicole was removed from Appellant’s home and placed

in foster care.   Immediately, however, Dr. Stuemky also examined

Nicole in his role as a member of the Child Protection Committee

for Children’s Hospital of Oklahoma.    Regarding Nicole’s

injuries, he testified as follows:

     This was a baby that had 2nd degree burns, these were
     burns that cause blisters and redness, about the face,
     particularly on the left side of the face. . . . It




                                 28
United States v. Diaz, No. 02-0513/AR


     encompasses above the eye much of the left side of the
     forehead, down over the top, down the bridge of the
     nose, over most of the anterior surface of the nose,
     under the eye, and down over the cheek and left side
     of the upper lip. . . . [There were also] several
     bruises present on her cheek, the left side of her
     cheek, and . . . an older bruise on her chest.

Dr. Stuemky also testified that X-rays of Nicole revealed older,

healing rib fractures on both sides of Nicole’s body.     He

testified it was “medically impossible for these fractures to

have occurred at the time of birth.     These fractures happened

after birth.”   Finally, he testified as follows regarding

Nicole’s rib injuries:

          Really, all the bones of infants and small
     children are very pliable. They bend easier then they
     break . . . . [T]he only cause of rib fractures in
     infants and small children, particularly posterior rib
     fractures [which Nicole had], is child abuse. By
     that, we mean that it takes grabbing the child’s chest
     and squeezing to bend those ribs and cause the
     fractures. . . .

          Infants in major motor vehicle accidents, or in
     trauma where infants and small children [sic], if they
     fall out of a 5, 10 or 15-story building, certainly
     they can be killed in the fall, but you don’t get rib
     fractures. In major motor vehicle accidents, it’s
     incredibly rare, even with massive injuries to the
     child, you can break arms and legs and die – but you
     don’t get rib fractures in these infants and small
     babies. . . .

          So, rib fractures in infants less than 2 years of
     age are considered indicative or pathenemonic for
     physical abuse.




                                29
United States v. Diaz, No. 02-0513/AR


     In foster care, Nicole thrived for nine months without

injury.   Her foster parents testified that while in their care,

Nicole’s health was “excellent” and “she was not ill at all.”

However, Nicole was returned to Appellant’s custody at the end

of that time, and two months after that she was dead in his

arms.

     As stated earlier, Dr. Balding performed the autopsy on

Nicole.   In addition to his testimony that he could find no

reason for her death other than suffocation, he testified he

found “bruises to the scalp . . . right on the top of the head,”

and that X-rays showed “fractures to the leg that were

unexplained.”    He also testified that “[w]ithout an explanation

of those, one frankly suspects some type of an inflicted injury

on the child.”

     Regarding the burn to Nicole’s face, the intake worker

testified Appellant “said that he was holding her over a

vaporizer, and that’s how she got the burn.”   Dr. Falcon,

however, testified he was told “the steamer had fallen and hot

water had splashed over the child’s face.”   Dr. Falcon was “99

percent” sure it was Appellant who told him, and not Mrs. Diaz,

but regardless of who actually told him, Appellant was present

when Dr. Falcon was told that different version of the events.




                                 30
United States v. Diaz, No. 02-0513/AR


     Ms. Amlin also spoke with Appellant about the burn to

Nicole, and testified she asked him, “Did you not see that the

child was in distress?   Steam is very hot.   If she was burning,

did the child not struggle or cry out or try to move away from

the source of the heat?”   In response, Appellant indicated “that

she made no movement at all,” and “didn’t give any indication

that [she] was being hurt.”   And with that response, Appellant’s

credibility evaporated, because the severity of the burn to

Nicole’s face made it implausible that she did not instantly and

violently recoil in pain, and every member of Appellant’s court-

martial knew it once they saw the pictures of that injury,

admitted as Prosecution Exhibit 10.     See James, 55 M.J. at 301

(appellate examination of photographs in the record); Charley,

189 F.3d at 1271 (appellant’s lack of credibility at trial

important factor in harmless error analysis).

     Regarding the bruises to Nicole’s cheek and chest, the

intake worker testified Appellant said he caused them “by

kissing on her – that he sucked on her like he likes to suck on

girls.”   Appellant’s wife also testified that Appellant caused

Nicole’s bruises by kissing her.

     Appellant argues in Granted Issue I that evidence of the

prior injuries to Nicole was inadmissible propensity evidence.

The majority agrees.   Unfortunately, the majority gets it very




                                31
United States v. Diaz, No. 02-0513/AR


wrong, and in the process completely ignores Supreme Court

precedent.

                                  The Law

      M.R.E. 404(b) states:

           Evidence of other crimes, wrongs, or acts is not
      admissible to prove the character of a person in order
      to show action in conformity therewith. It may,
      however, be admissible for other purposes, such as
      proof of motive, opportunity, intent, preparation,
      plan, knowledge, identity, or absence of mistake or
      accident[.]

Thus, this Court has said that such evidence is admissible under

M.R.E. 404(b) when: (1) it reasonably supports a finding that

the accused committed the prior acts; (2) it makes a fact of

consequence at the trial more or less probable; and (3) its

probative value substantially outweighs any prejudicial effect.

United States v. Humpherys, 57 M.J. 83, 90 (C.A.A.F.

2002)(quoting United States v. Reynolds, 29 M.J. 105, 109

(C.M.A. 1989)).3




3
  This Court decided United States v. Reynolds, 29 M.J. 105 (C.M.A. 1989),
after the Supreme Court decided Huddleston v. United States, 485 U.S. 681
(1988). Interestingly, Reynolds did not cite Huddleston, even though the
three-part test announced in Reynolds is identical in all material respects
to the three-part test announced in Huddleston for admissibility of 404(b)
evidence. Nonetheless, because the two tests are the same; because
Huddleston involves Federal Rules of Evidence 401, 403, and 404(b), and
Reynolds involves Military Rules of Evidence 401, 403, and 404(b); and
because these Military Rules are “taken without change from the Federal
Rule[s],” Reynolds should not be applied in a manner inconsistent with
Huddleston. See Manual for Courts-Martial, United States (2002 ed.),
Analysis of the Military Rules of Evidence at A22-33 and 34.




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United States v. Diaz, No. 02-0513/AR


     As to the first prong, the standard for satisfying it is

“quite low.”   United States v. Dorsey, 38 M.J. 244, 246-47

(C.M.A. 1993)(citing Huddleston, 485 U.S. 681).   That is

especially true in child abuse death cases, which “present very

unusual problems of proof.   The circumstances of these cases

suggest an even wider discretion than usual in admitting what is

conceded to be extremely prejudicial evidence, consisting of

other acts of abuse[.]”   United States v. Leight, 818 F.2d 1297,

1304 (7th Cir. 1987)(child abuse death case).

     Thus, in United States v. Harris, 661 F.2d 138 (10th Cir.

1981), also a child abuse death case, the court found evidence

of healing bone and rib fractures was admissible, even though

the prior injuries were unrelated to the victim’s death, and

even though there was no direct evidence the appellant inflicted

those injuries.   There was only inference from circumstantial

evidence.   In finding this evidence admissible, the court quoted

from United States v. Woods, 484 F.2d 127, 133 (4th Cir. 1973),

as follows:

          We think also that when the crime is one of
     infanticide or child abuse, evidence of repeated
     incidents is especially relevant because it may be the
     only evidence to prove the crime. A child of the age
     of Paul [eight months] . . . is a helpless,
     defenseless unit of human life. Such a child is too
     young, if he survives, to relate the facts concerning
     the attempt on his life, and too young, if he does not
     survive, to have exerted enough resistance that the




                                33
United States v. Diaz, No. 02-0513/AR


     marks of his cause of death will survive him. Absent
     the fortuitous presence of an eyewitness, infanticide
     or child abuse by suffocation would largely go
     unpunished.

(Emphasis added.)   See also United States v. White, 23 M.J. 84

(C.M.A. 1986)(evidence of prior rib fractures and bruises to

body and scalp admissible in child abuse death case, even though

no direct evidence the appellant caused those injuries; only

inference from circumstantial evidence).    Applying these

principles to Appellant’s case, I conclude all the evidence of

Nicole’s prior injuries was admissible.

                       Nicole’s Burned Face

     There is no doubt Appellant inflicted the burn to Nicole‘s

face, because he admitted it numerous times.    Thus, the first

part of the three-part test for admissibility of this evidence

is satisfied.   As for the second part -– whether the burn to her

face made a fact of consequence at the trial more or less

probable -– the answer to that is unequivocally yes.

     One of the elements the Government had to prove in this

case was that Appellant’s act of suffocating Nicole was with the

specific intent to kill or inflict great bodily harm on her.

Manual for Courts-Martial, United States (2002 ed.) [hereinafter

MCM], Part IV, para. 43.b.(2)(d).    However, direct evidence of

subjective intent many times is not available, leaving




                                34
United States v. Diaz, No. 02-0513/AR


circumstantial evidence of that intent as the only mode of

proof.   And frequently, that circumstantial evidence is of

prior, similar acts of the accused.      See Humpherys, 57 M.J. at

91.   Such prior acts help prove intent by lessening the

possibility that the subsequent act was accidental -– a common

sense proposition the Supreme Court has embraced but which a

majority of this Court today rejects.

      Thus, in McGuire, 502 U.S. 62, the defendant was charged

with murdering his infant daughter.      To help prove its case, the

prosecution introduced evidence of prior injuries to the

daughter to prove “battered child syndrome.”      Specifically, the

prior injuries were rectal tears and rib fractures, and based on

these prior injuries, two experts testified the victim was a

battered child.    Id. at 65.

      The defendant in McGuire was convicted of the murder, and

thereafter, he filed a petition for habeas corpus relief in the

district court.    His petition was denied, but he appealed to the

Court of Appeals, which reversed and “ruled that the prior

injury evidence was erroneously admitted to establish battered

child syndrome, because no evidence linked McGuire to the prior

injuries and no claim had been made at trial that the baby died

accidentally.”    Id. at 66.    To the contrary, McGuire generally

denied any involvement in the child’s death, and instead




                                   35
United States v. Diaz, No. 02-0513/AR


speculated that she fell off the couch, or someone else killed

her.    Id. at 65.

       At this point, I note the similarity between the facts in

Appellant’s case and those in McGuire.      In both, there was a

general denial of wrongdoing at trial, countered with evidence

of prior injuries of the victim that experts testified indicated

abuse, even though the prior injuries were not linked by direct

evidence to the accused.      I also note that regarding this issue,

the result reached by this Court’s majority, and its rationale,

are identical to the result reached by the Court of Appeals in

McGuire, and its rationale (i.e., evidence of the prior injuries

was inadmissible because there was no proof the accused caused

the injuries, and there was only a general denial of wrongdoing

at trial, not a specific claim of accident).

       Yet in McGuire, the Supreme Court made clear that this

result and rationale are incorrect.      Such evidence of prior

injuries, it held, is admissible, despite an accused’s general

denial of wrongdoing rather than a specific claim of accident,

and despite an absence of direct evidence linking him to the

prior injuries.      In so holding, the Court reasoned as follows:

       Because the prosecution had charged McGuire with
       second-degree murder, it was required to prove that
       Tori’s death was caused by the defendant’s intentional
       act. Proof of Tori’s battered child status helped to
       do just that; although not linked by any direct




                                   36
United States v. Diaz, No. 02-0513/AR


     evidence to McGuire, the evidence demonstrated that
     Tori’s death was the result of an intentional act[.]

     . . . [T]he Court of Appeals also relied on the theory
     that, because no claim was made at trial that Tori
     died accidentally, the battered child syndrome
     evidence was irrelevant and violative of due process.
     This ruling ignores the fact that the prosecution must
     prove all the elements of a criminal offense beyond a
     reasonable doubt. In this second-degree murder case,
     for example, the prosecution was required to
     demonstrate that the killing was intentional. By
     eliminating the possibility of accident, the evidence
     regarding battered child syndrome was clearly
     probative of that essential element . . . . The Court
     of Appeals, however, ruled that the evidence should
     have been excluded because McGuire did not raise the
     defense of accidental death at trial. But the
     prosecution’s burden to prove every element of the
     crime is not relieved by a defendant’s tactical
     decision not to contest an essential element of the
     offense.

502 U.S. at 68-69 (citations omitted)(emphasis added).

     The same is true in Appellant’s case, and applying the law

and logic of McGuire, I conclude the evidence of Nicole’s burned

face satisfies the second part of the three-part test for

admissibility because it helped prove Nicole’s death was caused

by Appellant’s intentional act of suffocating her -- something

the Government was required to prove and could not be precluded

from proving simply because the defense chose generally to deny

causing Nicole’s death rather than claim accident.   See also

United States v. Robles-Ramos, 47 M.J. 474 (C.A.A.F. 1998)(prior

instances of spouse abuse admissible to prove charged abuse was




                               37
United States v. Diaz, No. 02-0513/AR


not an accident); White, 23 M.J. at 87 (prior rib and other

injuries admissible to prove intent and absence of accident in

child abuse death case); United States v. Boise, 916 F.2d 497,

501 (9th Cir. 1990)(prior abuse probative of material issue of

absence of accident); Leight, 818 F.2d at 1301, 1303 (same);

State v. Norlin, 951 P.2d 1131, 1136-37 (Wash. 1998)(same).

     That leaves only the third part of the test for

admissibility -– whether the probative value of evidence of

Nicole’s burned face substantially outweighed any prejudicial

effect.   In this child abuse death case where there were no

eyewitnesses and only circumstantial evidence to prove Nicole’s

death was not an accident, I conclude the probative value of

that evidence outweighed any prejudicial effect.   See Boise, 916

F.2d at 502 (argument that judge abused discretion by admitting

evidence of prior abuse “lacks merit”); Leight, 818 F.2d at 1304

(“not an abuse of discretion to conclude that the probative

value of earlier acts of child abuse outweighed the unfair

prejudice of showing uncharged wrongs – even of a reprehensible

character”); Harris, 661 F.2d at 142 (“A battered child is not a

pretty picture.   But in our view the evidence of other injuries

was highly probative in nature.”); Norlin, 951 P.2d at 1137

(probative value of such evidence “was great”).




                                38
United States v. Diaz, No. 02-0513/AR


     Thus, evidence of Nicole’s burned face satisfied Supreme

Court precedent, as well as this Court’s three-part test for

admissibility, and was properly admitted to help prove an

essential element of the Government’s case – that when Appellant

suffocated Nicole, he did so intentionally and not by accident.

That said, the military judge did not abuse his discretion by

admitting that evidence.   To hold otherwise not only ignores the

prevailing Supreme Court jurisprudence applied by state and

other federal courts, but also establishes a different and more

difficult evidentiary standard for the prosecution of child

abuse cases in the military justice system.

     Nonetheless, the majority does hold otherwise, based on its

conclusion that because McGuire is a habeas corpus case, it “is

not a valid precedent for deciding an issue involving Military

Rule of Evidence.”   __ M.J. at (37 n.3).   Yet even if this

conclusion is correct, it significantly overstates the issue in

Appellant’s case, and in doing so “misses the legal point.”

United States v. Mitchell, 58 M.J. 446, 448 (C.A.A.F. 2003).

     As previously stated, there is a three-part test for

admissibility under M.R.E. 404(b).   The second part of that test

is that the evidence must make a fact of consequence at the

trial more or less probable.   Reynolds, 29 M.J. at 109.   In

other words, the evidence must be relevant under M.R.E. 401, the




                                39
United States v. Diaz, No. 02-0513/AR


evidentiary rule cited by Reynolds in support of this part of

the test.4    It is with respect to this limited and basic question

only that McGuire is both instructive and precedential in

Appellant’s case.

      As the majority correctly notes, because McGuire was a

habeas corpus case, it was not concerned with “whether the

California courts correctly applied the [state] rules of

evidence[.]”     __ M.J. at (41 n.3).      Rather, McGuire was

concerned only with “whether the admission of the evidence

[of prior misconduct] violated McGuire’s federal constitutional

rights.”     502 U.S. at 68.    In holding that it did not violate

his constitutional rights, the Supreme Court concluded “that the

prior injury evidence was relevant to an issue in the case,”

specifically, intent.      Id. at 70.     In other words, the Court

concluded that the prior act evidence was “relevant” within the

meaning of Federal Rule of Evidence 401.          See Fed.R.Evid.

1101(e) (Federal Rules of Evidence apply in habeas corpus

cases).

      That being the case, the evidence of Nicole’s burned face

was equally relevant under M.R.E. 401, because: (1) “[t]he


4
  Military Rule of Evidence 401 states: “‘Relevant evidence’ means evidence
having any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than it
would be without the evidence.”




                                     40
United States v. Diaz, No. 02-0513/AR


definition of ‘relevant evidence’ found within [M.R.E.] 401 is

taken without change from the Federal Rule,” MCM, Analysis of

the Military Rules of Evidence at A22-33, and (2) “as the

Military Rules of Evidence are largely derived from the Federal

Rules of Evidence, we look to the federal Courts of Appeals for

treatment of the issue[s].”   United States v. Grant, 56 M.J.

410, 414 (C.A.A.F. 2002).

     Thus, McGuire does not stand for the broad proposition that

evidence of Nicole’s burned face was admissible under M.R.E.

404(b).   What it stands for is the narrow proposition that

evidence of Nicole’s burned face was relevant in Appellant’s

case under M.R.E. 401, and therefore satisfied one of the three

distinct legal tests that all must be met before evidence is

admissible under M.R.E. 404(b).    That is all it stands for, and

it does so regardless of the fact it is a habeas corpus case.

     This is a legal reality the majority cannot refute, so

rather than confront it on the merits, they simply ignore and

obscure the issue with an overly broad and misleading conclusion

that McGuire does not apply to M.R.E. 404(b) issues as a whole.

But it does apply, in the limited way I just described, and the

majority’s failure either to acknowledge or refute that fact

calls into question the viability of their entire opinion.




                                  41
United States v. Diaz, No. 02-0513/AR


                        Nicole’s Other Injuries

     For the reasons just discussed, all of the evidence of

Nicole’s other injuries also satisfied the second and third

parts of this Court’s three-part test for admissibility, i.e.,

was more probative than prejudicial of the material fact of an

intentional killing.    The only question remaining is whether

evidence of those injuries also satisfied the first part of the

test, i.e., reasonably supported a finding that Appellant caused

those other injuries.

     As to Nicole’s cheek and chest bruises, the answer is

clearly yes, because Appellant admitted to the intake worker

that he caused them, and his wife testified that he caused them.

As to Nicole’s fractured ribs, broken leg, and scalp bruises,

the answer is also yes, because the standard is not whether

direct evidence “establish[ed] that Appellant inflicted” those

injuries, as the majority seems to imply, __ M.J. at (35)

(emphasis added), but whether given all the circumstances of

this case, the evidence could “reasonably support” a finding by

the members that Appellant inflicted those injuries.    Reynolds,

29 M.J. at 109; Huddleston, 485 U.S. at 685 (“sufficient

evidence to support a finding by the jury that the defendant

committed the similar act”).    In my view, the evidence easily

supported that finding because it clearly established Appellant




                                  42
United States v. Diaz, No. 02-0513/AR


“had both the inclination and the opportunity to commit the

crimes.”   Charley, 189 F.3d at 1271.

     First, Appellant inflicted second and third degree burns on

Jasmine and Nicole, and his confessed reason for burning Jasmine

was “to see what she would do.”    Second, Appellant and his wife

were the primary caretakers of the children.    Third, Dr. Stuemky

testified rib injuries like Nicole’s could only be caused by

abuse.   Fourth, Nicole was only a few months old at the time of

these injuries, and was therefore immobile and unable to self-

inflict them.   Fifth, there was no suggestion that Appellant’s

wife inflicted these injuries.    Sixth, there was no suggestion

anyone else inflicted them.   And seventh, the sheer number of

Nicole’s injuries reduced the likelihood they were caused by

others who periodically might have watched her.

     Given these facts, I conclude the members of Appellant’s

court-martial could reasonably have found that Appellant

inflicted Nicole’s rib, leg, and head injuries.    See Boise, 916

F.2d at 502 (evidence supported conclusion the appellant caused

the child’s prior rib injuries, where he and his wife were the

primary caregivers, and there was no suggestion she mistreated

the child); Harris, 661 F.2d at 141 (facts and circumstances

permitted jury to infer that defendant caused prior injuries

where “[a]ny suggestion that it was possibly the mother who




                                  43
United States v. Diaz, No. 02-0513/AR


mistreated [the child] is only that[,] a suggestion”); Norlin,

951 P.2d at 1137 (evidence supported conclusion the appellant

caused prior rib injuries, where he and his wife were the

primary caregivers, and wife testified prior injuries occurred

when child was alone with the appellant).

     As a result, all the evidence of Nicole’s prior injuries

satisfied this Court’s three-part test for admissibility, and

the military judge did not abuse his discretion in admitting it.

Moreover, the military judge’s response to Dr. Stuemky’s

improper testimony did much to cure the problem created by that

testimony.

                  The Military Judge’s Response

     Immediately after Dr. Stuemky’s testimony contradicted the

military judge’s express instructions, trial defense counsel

moved for a mistrial, but the military judge denied the request.

Instead, the judge had Dr. Stuemky leave the courtroom and gave

the members the following detailed instructions to cure any

prejudice to Appellant from Dr. Stuemky’s improper testimony:

         Members of the court, early on in this trial and
     during the case on several occasions, I’ve told you
     that you have to decide the facts in this case, and
     you have to make a determination as to whether a crime
     occurred. You have to make a determination as to the
     believability or credibility of witnesses. And you
     have to follow my instructions. Earlier on when we
     did the voir dire portion of the trial, I told you in
     my preliminary instructions – I told you that you were




                               44
United States v. Diaz, No. 02-0513/AR


     required to follow the instructions that I gave you,
     and you all assured me that you could do that.

          I’m going to give you some instructions
     concerning expert testimony. An expert – a person is
     allowed to testify as an expert because his testimony
     may be helpful to you in coming to conclusions about
     issues. The witness you’ve been hearing has been
     qualified as an expert in a specific discipline
     because his knowledge, skill, experience, training or
     education may assist you in understanding the
     evidence, or in determining a fact in issue. But
     [t]he point is that you have to determine the fact in
     issue. Do you understand that?

     MEMBERS: [Affirmative responses.]

     MJ: You are not required to accept the testimony of
     an expert witness or give it any more or less weight
     than that of an ordinary witness. But you should
     consider the expert’s experience and qualifications in
     the specific area.

          Expert witnesses are allowed to render opinions,
     and those opinions are only allowed if they’re helpful
     to you, the fact finder. But again, bear in mind that
     you have the ultimate determination as to a conclusion
     about the issues in this case.

          An expert witness cannot tell you that he thinks
     a crime occurred, because that’s not helpful to you,
     because you have to decide that. An expert witness
     cannot tell you that a witness is lying or truthful,
     or he cannot even tell you that a crime occurred.
     Because you have to decide that based on all the
     evidence, and only the evidence, that’s been presented
     to you in the courtroom. Do you understand that?

     MEMBERS:   [Affirmative responses.]

     MJ: To the extent that Dr. Stuemky opined that he
     thought a crime occurred, and that a particular
     specific person committed that crime, you cannot
     consider that, because that’s not helpful to you. You
     have to make that decision. Do you understand that?




                                45
United States v. Diaz, No. 02-0513/AR



     MEMBERS:   [Affirmative responses.]

     MJ: As I told you earlier this morning, there’s nobody
     that can help you in that regard, because you have to
     make your decision based on the evidence that’s
     presented to you here in court. Nobody else has the
     unique situation of being present to hear all the
     evidence in court. Do you understand what I’m telling
     you?

     MEMBERS:   [Affirmative responses.]

     MJ: I’m telling you that you must disregard any
     testimony about whether a crime occurred, or whether
     this soldier committed a crime. Do you understand
     that?

     MEMBERS:   [Affirmative responses.]

     MJ: And you can’t consider that for any reason during
     your deliberations. Do you understand that?

     MEMBERS:   [Affirmative responses.]

     MJ: I’ve gotten affirmative responses by every member
     to this point. You can consider evidence that certain
     – as to an opinion about whether injuries were
     consistent with SIDS or not consistent with SIDS, or
     whether the injuries were consistent with a child-
     abuse type death. But you cannot consider any
     testimony as to what this witness thought as to who
     did it. Do you understand that?

     MEMBERS:   [Affirmative responses.]

Having instructed the members in this manner and determined that

they collectively understood and would follow them, the judge

then took the added step of polling the members individually,

asking each one if he or she understood and could follow the




                                46
United States v. Diaz, No. 02-0513/AR


instructions.   In response, each member stated for the record

that he or she understood and would follow them.

                            Conclusion

     In light of (1) these curative measures taken by the

military judge; (2) the strong expert testimony that SIDS could

not be the cause of Nicole’s death; (3) the strong expert

testimony there was no cause of death other than suffocation;

(4) the fact that only Appellant could have suffocated Nicole;

(5) Appellant’s prior abuse of Nicole and subsequent abuse of

Jasmine; and (6) Appellant’s complete lack of credibility, I

conclude that the improper testimony in this case that Nicole’s

death was a homicide did not substantially influence the

members’ findings of guilty, and that as a result, the military

judge did not err in refusing to grant a mistrial.   See Charley,

189 F.3d at 1272 (“In light of the strength of the properly

admitted testimony . . ., and the relatively modest amount of

erroneously admitted testimony, we cannot say that the

erroneously admitted portions of the testimony substantially

affected the trial’s outcome[.]”); United States v. Taylor, 53

M.J. 195, 198 (C.A.A.F. 2000)(mistrial is “drastic remedy”

needed only to prevent “miscarriage of justice”; curative

instruction is “preferred”); Rule for Courts-Martial




                                47
United States v. Diaz, No. 02-0513/AR


915(a)(mistrial when “manifestly necessary in the interest of

justice”).

     I would affirm the decision of the court below.




                               48
