                       UNITED STATES, Appellee

                                    V.

                    Carlos O. PALMER, Specialist
                        U.S. Army, Appellant


                              No. 01-0034


                        Crim. App. No. 9801039



       United States Court of Appeals for the Armed Forces

                        Argued April 24, 2001

                        Decided June 29, 2001

     GIERKE, J., delivered the opinion of the Court, in which
  CRAWFORD, C.J., and SULLIVAN, EFFRON, and BAKER, JJ., joined.

                                 Counsel
For Appellant: Captain Maanvi M. Patoir (argued); Colonel Adele
   H. Odegard, Lieutenant Colonel David A. Mayfield, and Major
   Mary M. McCord (on brief); Captain Stephanie L. Haines.
For Appellee: Captain Paul T. Cygnarowicz (argued); Colonel
   David L. Hayden, Lieutenant Colonel Edith M. Rob, and Major
   Anthony P. Nicastro (on brief).

Military Judge:   Paul L. Johnston


    This opinion is subject to editorial correction before publication.
United States v. Palmer, No. 01-0034/AR


      Judge GIERKE delivered the opinion of the Court.

      A special court-martial composed of officer and enlisted

members convicted appellant of unlawful possession, distribution,

and use of marijuana, in violation of Article 112a, Uniform Code

of Military Justice, 10 USC § 912a.           The court-martial sentenced

appellant to a bad-conduct discharge, confinement for 6 months,

forfeiture of $617 pay per month for 6 months, and reduction to

the lowest enlisted grade.       The convening authority reduced the

period of confinement to 4 months and 3 days but approved the

remainder of the sentence.       The Court of Criminal Appeals

affirmed the findings and sentence.

      This Court granted review of the following issue:

            WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL
            APPEALS ERRED IN RULING THAT APPELLANT HAD FAILED TO
            ESTABLISH THAT THE MILITARY JUDGE COMMITTED PLAIN ERROR
            BY EXCLUDING EVIDENCE OF A PRIOR INCONSISTENT STATEMENT
            WHEN A VALID BASIS OF ADMISSIBILITY HAD BEEN MADE AND
            THE MILITARY JUDGE KNEW THAT THE EVIDENCE WAS CRUCIAL
            TO THE DEFENSE CASE.

For the reasons set out below, we affirm.

                            Factual Background
      At about 3:00 a.m. on January 26, 1998, a civilian police
officer stopped to render assistance to appellant, whose

automobile was in a ditch.       When appellant rolled down the

window, the officer noticed a strong odor of alcohol.           Appellant

failed several field sobriety tests and was arrested for driving

under the influence of alcohol.           During an inventory of

appellant’s car in preparation for towing it, three cellophane

bags of marijuana were seized.

      At trial, three witnesses testified about appellant’s

possession, distribution, and use of marijuana.           One witness,


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United States v. Palmer, No. 01-0034/AR


Private First Class (PFC) Sean Boggs, testified that he purchased

marijuana from appellant and smoked marijuana with him after each

purchase on “about seven or eight” occasions.        Defense counsel

cross-examined PFC Boggs but did not ask him about any

inconsistent, out-of-court statements.        PFC Boggs was permanently

excused as a witness with no objection from the defense.

      During the defense case, Specialist (SPC) Timothy Sauls was

asked to relate a conversation he overheard between PFC Boggs and

appellant.    The prosecution objected on hearsay grounds.      During

a hearing outside the presence of the members, the military judge

asked, “[W]hat is it you want this witness to testify to?”        The

following colloquoy ensued:

      DC: Well, Your Honor, PFC Boggs—this soldier is privy to a
      conversation that Boggs had with Specialist Palmer when
      Boggs told Palmer that Palmer didn't do anything with
      regards to what he is being charged with. And that
      statement was made by Boggs and it goes to his state of mind
      at the time the statement was made, and it's not going—it's
      not hearsay.

      MJ: So, what you want to do is have this witness testify
      that on some occasion after the accused was charged, Boggs
      said to the accused, you didn't do what you are charged
      with?
      DC: Something to that effect, Your Honor. Boggs made a
      statement after Boggs made his 24 February statement with
      regards to what's true and what's not true in his statement,
      and I believe this witness has some information that goes to
      the actual credibility of Boggs' statements.

      MJ:   Yes, Captain King?      You are standing?

      ATC: Yes, thank you, Your Honor. First of all, Your Honor,
      if the defense wants to attack Boggs' credibility, he
      certainly could have asked this question of Boggs while he
      was on the stand. To offer hearsay under this —- under this
      premise that it goes to some mental state or emotional
      condition of Boggs while having Sauls testify about it, the
      – the government submits it’s not authorized, and that is
      clearly a hearsay case.




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United States v. Palmer, No. 01-0034/AR


      MJ: Well, I am going to sustain the government's objection
      to that one question. I do believe it is hearsay. I have
      reviewed Military Rule of Evidence 803(3), an exception to
      the hearsay rule cited by defense counsel about then
      existing mental state, and I don't believe that this is the
      type of statement that would fall within that exception to
      the hearsay rule in that it’s not talking about a mental
      state of Boggs as to what he is going to be doing at some
      point in the future. It appears to me that what you are
      trying to do is get in through hearsay Boggs' opinion about
      something, so I am not—I just don't see that this fits
      within the exception that you cited. I am going to sustain
      the objection.

(Emphasis added.)     Defense counsel did not proffer any other

basis for admitting SPC Sauls’ testimony.         After a short recess,

the defense rested.

      Appellant now argues that SPC Sauls’ testimony was obviously

admissible under Mil. R. Evid. 613, Manual for Courts-Martial,

United States (2000 ed.),∗ to prove that Boggs made a statement

prior to trial that was inconsistent with his testimony at trial,

and that the military judge should have recognized it as such

based on the context.      The Government asserts that defense

counsel did not proffer the evidence with sufficient specificity

to put the military judge on notice of the grounds for

admissibility now asserted on appeal.         The Government argues
that, because of the inadequate proffer, appellant failed to

preserve the issue for appeal.

      Mil. R. Evid. 103(a)(2) provides in pertinent part:

            Error may not be predicated upon a ruling which admits
            or excludes evidence unless the ruling materially
            prejudices a substantial right of a party, and

                                  *   *   *


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



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United States v. Palmer, No. 01-0034/AR


            In case the ruling is one excluding evidence, the
            substance of the evidence was made known to the
            military judge by offer or was apparent from the
            context within which questions were asked.

      Mil. R. Evid. 613(b) provides:

            Extrinsic evidence of a prior inconsistent statement by
            a witness is not admissible unless the witness is
            afforded an opportunity to explain or deny the same and
            the opposite party is afforded an opportunity to
            interrogate the witness thereon, or the interests of
            justice otherwise require.

      Although the usual practice is to confront the witness with

the inconsistent statement during cross-examination, it is

permissible to delay any mention of the inconsistent statement

until other witnesses are called.         See United States v. Callara,
21 MJ 259, 264-65 (CMA 1986); Stephen A. Saltzburg, Lee D.

Schinasi, and David A Schlueter, Military Rules of Evidence

Manual 809 (4th ed. 1997); Drafters’ Analysis of Mil. R. Evid.

613(b), Manual, supra at A22-49.

      Mil. R. Evid. 803(3), relied on by the defense at trial,

provides that a statement is not hearsay if it is--

            A statement of the declarant’s then existing state of
            mind, emotion, sensation, or physical condition (such
            as intent, plan, motive, design, mental feeling, pain,
            and bodily health), but not including a statement of
            memory or belief to prove the fact remembered or
            believed unless it relates to the execution,
            revocation, identification, or terms of [the]
            declarant’s will.

(Emphasis added.)     In United States v. Means, 24 MJ 160, 162 (CMA

1987), this Court held, “When a ruling excludes evidence,

appellate review of the correctness of the ruling is not

preserved unless ‘the substance of the evidence was made known to

the military judge by offer or was apparent from the context

within which questions were asked.’”        Military judges are not



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United States v. Palmer, No. 01-0034/AR


expected to be clairvoyant.       When the basis for admissibility is

not obvious, “an offer of proof is required to clearly and

specifically identify the evidence sought to be admitted and its

significance.”     Id. at 162-63.

      United States v. Hudson, 970 F.2d 948, 957 (1st Cir. 1992),

cited by appellant, set out the general rule: If evidence is

excluded at trial because it is inadmissible for the purpose

articulated by its proponent, the proponent cannot challenge the

ruling on appeal on the ground that the evidence could have been

admitted for another purpose.        A purpose not identified at trial

does not provide a basis for reversal on appeal.

      We review a military judge’s ruling excluding evidence for

abuse of discretion.      United States v. Sullivan, 42 MJ 360, 363
(1995).   The proponent of evidence has the burden of showing that

it is admissible.     United States v. Shover, 45 MJ 119, 122

(1996).   Because of defense counsel’s vague and misdirected

proffer, we hold that the military judge did not abuse his

discretion by sustaining the Government’s objection to the

evidence.    Means, 24 MJ at 163.
      Defense counsel offered the evidence under Mil. R. Evid.

803(3) as evidence of PFC Boggs’ state of mind.       He did not

sufficiently link Boggs’ state of mind to the credibility of his

testimony.    He made no effort to reconcile his theory of

admissibility with the limitation in Mil. R. Evid. 803(3) that

makes it inapplicable to “a statement of memory or belief to

prove the fact remembered or believed.”

      Unlike the situation in Hudson, supra, defense counsel never

asserted that SPC Sauls’ testimony was admissible to impeach PFC


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United States v. Palmer, No. 01-0034/AR


Boggs.    Defense counsel did not mention Mil. R. Evid. 613, utter

the word “inconsistent” or anything equivalent to it, or alert

the military judge to the theory of admissibility now urged on

appeal.   Although Mil. R. Evid. 103(a)(2) does not require

counsel to cite the rule by number or to quote specific words

from the rule, counsel is required to alert the military judge to

the significance of the proffered evidence.     In this case,

defense counsel did not allude to the inconsistency between

Boggs’ pretrial statement and his trial testimony as the basis

for admission.     Instead, he focused the military judge on the

hearsay exception based on Boggs’ state of mind.     If defense

counsel had two theories of admissibility, it was incumbent on

him to alert the military judge to both theories, especially when

it became apparent that the military judge was ruling only on the

basis of Mil. R. Evid. 803(3).

      It is clear that the military judge was not alerted to the

possibility of a prior inconsistent statement.     He observed,

without contradiction, that defense counsel was trying to “get in

through hearsay Boggs’ opinion about something.”     Defense counsel

made no effort at that point to focus the military judge on any

inconsistency between Boggs’ testimony in court and the

conversation allegedly overheard by SPC Sauls.

                                  Decision
      The decision of the United States Army Court of Criminal

Appeals is affirmed.




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