United States v. Alameda , 2002 CAAF LEXIS 1030 ( 2002 )

UNITED STATES, Appellee
V.
Tedio ALAMEDA, Senior Airman
U.S. Air Force, Appellant
No. 01-0534
Crim. App. No. 33529
United States Court of Appeals for the Armed Forces
Argued April 3, 2002
Decided August 28, 2002
GIERKE, J., delivered the opinion of the Court, in which
BAKER, J., and COX, S.J., joined. EFFRON, J., filed an opinion
concurring in part and dissenting in part. CRAWFORD, C.J., filed
a dissenting opinion.
Counsel
For Appellant: Jack B. Zimmermann (argued); Captain Shelly W.
Schools, Terri R. Z. Jacobs, and Kyle R. Sampson (on brief);
Major Jefferson B. Brown.
For Appellee: Captain Adam Oler (argued); Colonel Anthony P.
Dattilo and Lieutenant Colonel Lance B. Sigmon (on brief).
Military Judge: Kurt D. Schuman
This opinion is subject to editorial correction before final publication.
United States v. Alameda, No. 01-0534/AF
Judge GIERKE delivered the opinion of the Court.
A general court-martial composed of officer and enlisted
members convicted appellant, contrary to his pleas, of attempted
premeditated murder, disobeying the order of a superior
commissioned officer, assault consummated by a battery, and
communicating a threat, in violation of Articles 80, 90, 128, and
134, Uniform Code of Military Justice (UCMJ), 10 USC §§ 880, 890,
928, and 934, respectively. The adjudged and approved sentence
provides for a dishonorable discharge, confinement for 18 years,
total forfeitures, and reduction to the lowest enlisted grade.
Pursuant to Article 58b, UCMJ, 10 USC § 858b, the convening
authority waived automatic forfeitures for the benefit of
appellant’s spouse and children. The Court of Criminal Appeals
affirmed the findings and sentence in an unpublished opinion.
This Court granted review to determine whether the findings
and sentence should be set aside because appellant’s rights under
the Fifth Amendment to the United States Constitution and Article
31, UCMJ, 10 USC § 831, were violated when the prosecution
elicited testimony that appellant remained silent when he was
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apprehended, and then commented on his silence during final
argument.1 For the reasons set out below, we reverse.
Factual Background
The charges arose from two incidents between appellant and
his wife. The first incident was on April 30, 1998 and the
second on May 19, 1998.
Mrs. Alameda testified that appellant engaged in a pattern
of physical and verbal abuse, domination and control, and threats
to kill her that began in 1990, while he was undergoing technical
training shortly after he enlisted in the Air Force, and
continued until appellant was placed in pretrial confinement as a
result of the charges that are the subject of this appeal. Mrs.
Alameda was medically evacuated from Kadena Air Base (AB),
Okinawa, Japan, in 1991 because of stress and depression that she
attributed to appellant’s behavior. She described an incident at
McGuire Air Force Base, New Jersey, between appellant’s two tours
of duty at Kadena AB, in which appellant held a large butcher
1
We heard oral argument in this case at the Seattle University
School of Law, Seattle, WA, as part of the Court’s “Project
Outreach.” See United States v. Pritchard, 45 M.J. 126, 127 n.1
(1996). The granted issues are:
I. WHETHER THE FINDINGS AND SENTENCE SHOULD BE SET ASIDE
BECAUSE APPELLANT’S RIGHT TO REMAIN SILENT UNDER THE FIFTH
AMENDMENT WAS VIOLATED WHEN THE PROSECUTION ELICITED
TESTIMONY THAT APPELLANT DID NOT RESPOND VERBALLY WHEN
ARRESTED, AND WHEN THE PROSECUTION COMMENTED ON THIS DURING
FINAL ARGUMENT.
II. WHETHER THE FINDINGS AND SENTENCE SHOULD BE SET ASIDE
BECAUSE APPELLANT’S RIGHT TO REMAIN SILENT UNDER ARTICLE
31(b), UCMJ, WAS VIOLATED WHEN THE PROSECUTION ELICITED
TESTIMONY THAT APPELLANT DID NOT RESPOND VERBALLY WHEN
ARRESTED, AND WHEN THE PROSECUTION COMMENTED ON THIS DURING
FINAL ARGUMENT.
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knife against her throat, threatened to kill her, and shoved her
into a door, fracturing her jaw. Appellant and Mrs. Alameda were
divorced in 1993 and then remarried in 1994.
Mrs. Alameda testified that on the morning of April 30,
1998, appellant became upset when he discovered an e-mail message
on her computer from a male high school friend of hers who wanted
to visit her in Okinawa. According to Mrs. Alameda, appellant
tossed the computer off the table, smashed the telephone when she
tried to call for help, “flicked” a towel at her head, shoved and
grabbed her, punched her on the back of her head and her back,
and threatened to kill her. She testified that after appellant
departed for work, she e-mailed a friend and neighbor, Tammy
Warner, and asked her to call the Air Force Security Forces
(Security Forces).
After the Security Forces investigated the incident,
appellant’s commander, First Lieutenant (1Lt) Deborah Haussler,
ordered appellant to move out of the family quarters and into a
dormitory. She gave appellant a written order prohibiting him
from having any contact with his wife and child, unless it was
prearranged by certain named members of the unit.
About a week later, the Family Advocacy therapist contacted
1Lt Haussler and expressed concern that she had been unable to
contact Mrs. Alameda. 1Lt Haussler visited the therapist and
examined Mrs. Alameda’s Family Advocacy file, which revealed that
appellant had violated a similar “stay away” order on a previous
occasion. 1Lt Haussler became concerned about Mrs. Alameda’s
welfare and decided to visit her at home “to make sure she was
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okay.” While visiting Mrs. Alameda, 1Lt Haussler noticed bruises
on Mrs. Alameda’s upper arms.
Sometime during the week of May 12, 1998, 1Lt Haussler
received an “early return of dependents” (ERD) packet to allow
Mrs. Alameda and her son to leave Okinawa at government expense
before appellant completed his tour of duty. She did not know
how the ERD packet originated. She informed appellant that he
needed to sign the packet. He refused to sign it because he did
not want his son to leave Okinawa. 1Lt Haussler subsequently
learned that an ERD request could be approved without the
military member’s signature, and she informed appellant on May 18
that the request would be processed without his signature. 1Lt
Haussler contacted Mrs. Alameda at approximately 2:30 p.m. on May
19, and they made an appointment for Mrs. Alameda to sign the ERD
request in 1Lt Haussler’s office at about 3:30 p.m. on that day.
On the morning of May 19, Mrs. Alameda contacted the
squadron first sergeant and told him that she needed money for
food. When her request was transmitted to appellant, he
expressed concern that his money was not being used for food.
With the approval of the first sergeant, appellant purchased food
at the base commissary and, accompanied by two noncommissioned
officers, took the food to the family residence in the early
afternoon. While at the residence, appellant gathered some
personal clothing and effects, and downloaded some information
from his computer. His escorts returned to the squadron,
arriving at about 2:15 p.m. Appellant departed the family
residence in his own vehicle. He did not return to work with his
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escorts because, as he told his supervisor, he wanted to see a
chaplain.
Chaplain (Captain) Tim Wagoner testified that he received a
call from appellant, asking to see him. Base telephone records
established that the call was at 1:55 p.m. Appellant told
Chaplain Wagoner that he was at Chapel 2; Chaplain Wagoner was at
Chapel 1. Chaplain Wagoner agreed to see appellant, who came to
Chapel 1. Both chapels are near the housing area where the
Alameda residence was located. According to the telephone
records and Chaplain Wagoner’s testimony, appellant called his
unit at 2:09 p.m. and told them that he was with the chaplain.
Chaplain Wagoner testified that he counseled appellant for “a
little better than an hour.” He was not sure whether he had
finished counseling appellant when he made another telephone call
at 3:10 p.m.
Mrs. Alameda departed her on-base place of employment at
about 3:00 p.m. in anticipation of her appointment with 1Lt
Haussler. She arrived at home at about 3:15 p.m., saw the
groceries, and noticed that some of appellant’s clothing that she
had set aside had been disturbed. She called 1Lt Haussler and
complained that appellant had been in the house in spite of the
“stay away” order, had left her groceries instead of money, and
had rummaged through her belongings. 1Lt Haussler told her,
“come down to my office, sign the ERD letter. We’ll get you off
this island as quickly as we can.” Mrs. Alameda responded that
she would come immediately.
Mrs. Alameda testified that as she was leaving the
residence, appellant entered. She testified that when she saw
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appellant, she “was hysterical . . . [and] completely freaked out
that he was standing in front of [her].” She testified that
appellant tried to calm her down. She moved to a corner of the
room, appellant sat on a couch, and he started asking, “Do you
want a divorce? Do you want this?” She did not respond. They
began to move around the house. Appellant was putting his hands
on her because she “was trying to scream out and stuff,” and
“trying to get away.” She testified, “Every move I made, he was
right on top of me.”
Mrs. Alameda testified that at one point, appellant was
behind her and he covered her mouth and pinched her nose so that
she could not breath. She struggled free and ran toward the
door. She saw appellant pulling a Hefty garbage bag from his
pocket. It was black with yellow straps, tightly folded, and
appeared to have never been opened. Appellant was trying to hold
her with one hand and unfold the bag with the other. She tried
to get away and appellant grabbed her from behind. She
testified, “[H]e got it up as far as my face and stuff, and was
trying to get it open to where he could get it over my head and
stuff, but I ended up ducking down, struggling, and getting out.”
Mrs. Alameda testified that she ran into the bedroom,
telling appellant that she would do “[w]hatever you want me to
do.” She asked him, “Please, let’s go back into the living room
and talk.” As appellant turned around to go into the living
room, she slammed the bedroom door and locked it, and then
crawled out a window.
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She ran across the street, screaming. A neighbor, Melanie
Young, let Mrs. Alameda into her house, where Mrs. Alameda called
1Lt Haussler.
On cross-examination, Mrs. Alameda testified that she did
not remember whether she told the Security Forces that appellant
had attempted to “strangle” her. In response to defense
counsel’s questions, she insisted that appellant did not try to
strangle her, but tried to put the garbage bag over her head.
1Lt Haussler testified that Mrs. Alameda called her at 3:45
p.m. and was screaming that appellant had been in the house and
tried to kill her. 1Lt Haussler called the Security Forces and
then drove to the Alameda residence.
Both 1Lt Haussler and Ms. Young noticed red marks around
Mrs. Alameda’s neck. A doctor at the base hospital noticed that
she had superficial abrasions on her neck and scratches on her
nose. He also noticed bruises on her arm and leg, and a “goose
egg” on the back of her head.
Technical Sergeant (TSgt) Gowan and his wife drove past the
Alameda quarters at about 3:15 p.m. on May 19. They both
testified that they saw a van, later determined to be
appellant’s, parked near the Alameda residence at about 3:15 p.m.
TSgt Eugene Moody, a member of the Security Forces, was on
routine patrol when he was directed to respond to the Alameda
residence. He knew where it was because he had also responded to
the April 30 incident as well as an earlier incident. In
response to a question from trial counsel, TSgt Moody testified
that when he observed appellant after the April 30 incident,
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appellant “pretty much was without any emotion, just a plain look
. . . .”
When TSgt Moody arrived at the Alameda residence on May 19,
he noticed that the bedroom window was open with the blinds
hanging out the window. Mrs. Alameda was “excited, and . . .
definitely upset.” According to TSgt Moody, Mrs. Alameda said
that appellant “had a bag around [her] neck” and tried to kill
her. He testified that he thought she meant that appellant had
put the bag around her neck, but she was not “really clear.”
TSgt Moody observed that Mrs. Alameda had red marks on the sides
of her neck.
TSgt Moody then began to look for appellant. He began by
searching the street adjacent to the Alameda residence and then
proceeded to the dormitory area. Based on a description of
appellant's van, he located it in the dormitory area and saw
appellant sitting on the dormitory stairs, talking to another
individual. TSgt Moody called for another unit to assist. When
it arrived, TSgt Moody approached appellant and asked him if he
was Airman Alameda, and appellant responded that he was. TSgt
Moody asked the person next to appellant to move away, asked
appellant for his identification card, and appellant complied.
As the trial counsel continued the direct examination of TSgt
Moody, the following colloquy occurred, giving rise to the
granted issues:
Q. Did he ask any other questions during this
time?
A. No.
Q. Did he say anything like, “What do you want?
What are you here for?” or anything like that?
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A. No.
DC: Objection, Your Honor. Irrelevant.
MJ: Overruled.
[Questions by assistant trial counsel]
Q. Did he make any such statement as that?
A. No, sir, he did not.
Q. After you verified it was, in fact, Senior
Airman Tedio Alameda, what did you do next?
A. I informed him that he was going to be
apprehended for an alleged assault.
Q. And what did he say or do then?
A. He didn’t say anything. He didn’t do
anything. He had a look like [witness stared
ahead] and that was it.
Q. Did he ask you why he was being arrested?
A. No, sir, he did not.
Q. Did he act like he knew what was going on?
DC: Objection, Your Honor. Calls for
speculation.
MJ: Again, you can ask him what he observed, but
you can’t ask him for those types of conclusions
of whether or not he did understand.
Q. So, again, when you asked Airman Alameda for
his ID card, did he say anything?
A. No, sir.
Q. And when you told him that he was being
apprehended, did he say anything?
A. He said -
DC: Objection. Asked and answered, Your Honor.
MJ: I’ll allow it, as long as you move on.
ATC: Yes, Your Honor.
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Q. How would you describe Airman Alameda’s
reaction after you told him he was being placed
under arrest?
A. Once again, just as in the previous situation
where I had made contact with Airman Alameda, he
didn’t have much of a reaction or much emotion at
all.
On cross-examination, defense counsel asked TSgt Moody if
Mrs. Alameda used the word, “strangle.” He responded,
No. I remember, “He was trying to kill me. He was
trying to strangle me. He was trying to -- he had a
bag around my neck and trying to strangle me.” But the
term “strangle” was in there also.
Staff Sergeant (SSgt) Steven Anthony was directed to search
appellant’s dormitory for a “dark brown or black plastic garbage
bag with yellow drawstrings.” He searched the entire dormitory,
and he found a box of Hefty garbage bags matching that
description in a trash can in a common bathroom. Later
examination by an agent of the Air Force Office of Special
Investigations (OSI) revealed that one garbage bag had been
removed from the box and 19 were remaining. A latent finger
print on the Hefty box was identified as appellant’s. A
stipulation of expected testimony of a member of the dormitory
custodial staff established that the custodial staff did not use
Hefty garbage bags, and that the trash cans in the bathrooms were
emptied daily.
In the same trash can, SSgt Anthony found an unopened
package of latex gloves and a utility knife, both in their
respective original packaging. SSgt Anthony also found a plastic
bag bearing the logo of the Army and Air Force Exchange Service
(AAFES), containing an unopened roll of 2-inch masking tape, and
an AAFES receipt dated May 16 reflecting a purchase of coffee,
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United States v. Alameda, No. 01-0534/AF
utility knife, latex gloves, a roll of masking tape, and a pack
of GPC cigarettes. The plastic bag was located in a trash can
across the bathroom from the one where he found the Hefty garbage
bags.
The plastic bag, receipt, roll of masking tape, latex
gloves, and utility knife were received in evidence over defense
objection. The defense argued that the items had not been
connected to appellant. The prosecution argued that the items
were relevant to show premeditation, and that they were
sufficiently linked to appellant by the fact that the cigarettes
were the same brand appellant smoked, and that all the items were
thrown away at about the same time, in the same new condition as
the Hefty garbage bags, in the common bathroom of appellant’s
dormitory. The military judge admitted the evidence, finding the
items relevant to show “some sort of a plan or premeditation.”
On a date not reflected in the record, Mrs. Alameda
delivered a pack of GPC cigarettes to the OSI and informed them
that appellant had dropped them during the May 19 altercation. A
fingerprint lifted from the cigarette pack was not appellant’s.
Appellant did not testify. His counsel concentrated on
attacking the credibility of the Government witnesses, especially
Mrs. Alameda. In addition, the defense presented the testimony
of three witnesses to contradict Mrs. Alameda’s testimony.
The defense presented the stipulated testimony of a senior
airman who was involved in the in-processing of appellant into
the confinement facility during the early morning hours of May
20, 1998. The stipulation recites that appellant was in
possession of a partially empty package of GPC cigarettes when he
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United States v. Alameda, No. 01-0534/AF
was in-processed. This testimony was offered to contradict Mrs.
Alameda’s statement that appellant inadvertently left his
cigarettes in the family quarters on May 19.
The stipulated testimony of Mrs. Crystal Hammond recites
that she did not hear any “yelling, screaming, or other loud
noises coming from the Alameda residence.” It further adds that
Mrs. Hammond would testify that she was asleep with the
television on between approximately 3:00 p.m. and 4:00 p.m., with
the windows and doors closed, and that, under these
circumstances, she could hear very little, if anything, from
outside.
A nine-year-old girl, whom Mrs. Alameda observed when she
ran out of her apartment, testified that Mrs. Alameda left from
her front porch, not from a bedroom window. The girl testified
that when she saw Mrs. Alameda, the latter “was standing right on
the porch, putting her keys in.” She also testified that Mrs.
Alameda locked the doors to her car, which was parked in a space
marked with the number of her house.
Before closing arguments, when the military judge instructed
the members, he included the following admonition:
The accused has an absolute right to remain silent.
You will not draw any inference adverse to the accused
from the fact that he did not testify as a witness.
The fact that the accused has not testified must be
disregarded by you.
During arguments on findings, trial counsel made a specific
reference to TSgt Moody’s testimony about appellant’s lack of
reaction or response when he was apprehended. The following
exchange took place in the presence of the members:
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United States v. Alameda, No. 01-0534/AF
TC: “. . . And lo and behold, the cops came and picked
me up, and I was just sitting there on the steps,
didn’t know what this was about,” but didn’t bother
even to ask.
Now, does that indicate consciousness of guilt? The
police come and say, “Stand up” --
DC: Objection, Your Honor. The accused is under no
obligation to make a statement and this drawing an
adverse inference from his failure to proclaim his
innocence.
TC: Your Honor, the witness testified about what he
said and did when they apprehended him.
MJ: I think it’s fair comment on the state of the
evidence. However, I will emphasize once again the
fact that this accused is under absolutely no
obligation to make any statement during the trial in
his defense.
TC: Yes, Sir.
TC: And when Sergeant Moody approaches him on the
steps and says, “Are you Tedio Alameda? Stand up.
You, man, get away from him. Let me see your
identification card.” He doesn’t even say, “What’s
this all about?” Even though --
DC: Object again, Your Honor. I believe this is not
fair comment on the evidence. This is comment on his
exercise of his right to remain silent.
TC: Your Honor, the witnesses testified in this court,
without objection, to that specific fact.
MJ: With regard to he did not ask what was going on?
TC: That’s right.
MJ: Okay. Now we’ve got that. We know that is in
evidence. Now with regard -- nothing will be held
against this accused because he did not say anything in
his defense. Okay? So let’s keep this very clear.
Regarding the items found in the dormitory bathroom, trial
counsel argued that they showed a premeditated intent to kill.
Trial counsel further argued that appellant sat in the chaplain’s
office and thought to himself: “I’m leaving here and I’m going to
go take that whore out. And I’ve got the implements in my car.
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United States v. Alameda, No. 01-0534/AF
I’ve got the box of bags. I’ve got the rubber gloves. I’ve got
the knife. I’ve got the tape.” Trial counsel continued his
argument:
Who knows what sinister plan he had in mind? That he
was going to subdue her with the bag? Gag her and bind
her with the tape? Cut her wrists? Cut her throat?
Keep the blood off his hands?
And then when he fails, when he fails because she’s
smart enough to get the door between them and she gets
out the window, he gets out of that house. And he runs
down, he gets in his van where he’s got it parked with
the door facing the hill, so all he has to do is hop
in, and he goes back to the dormitory very quickly, and
he says, “Jeez [sic], I better get rid of all these
things that are involved in this.” And he runs
upstairs and he throws the box of bags in the trash in
the common area bathroom, and the rest of the
implements, too. The rest of the new implements bought
on the 16th of May, three days before. Premeditation.
Same place. Same time. Same condition. Consciousness
of guilt. Proof of premeditated design to kill. And
intent to kill. Is there any other intent here that is
even reasonably inferable? Putting a bag over
somebody’s head right before they get off the island?
Was he just going over for one more exercise at
control? One more exercise of dominance? I just want
to get one last lick in before you go?
Or was he instead going over there to keep her from
going? Perhaps to put her body in different bags,
throw her in the bay, pick up his boy at day care, and
claim he didn’t know anything about it.
The evidence is overwhelming. Attempted premeditated
murder. Intent to kill. Not just a credibility
contest.
After deliberating for approximately eight hours over a two-
day period, the court members convicted appellant as charged.
The Court of Criminal Appeals held that the military judge
erred by admitting the utility knife, masking tape, and gloves
because they were not sufficiently connected to appellant. The
court below held, however, that the error was harmless. The
Government does not contest that holding. The court below did
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United States v. Alameda, No. 01-0534/AF
not address the admissibility of the testimony about appellant’s
silence at the time of his apprehension, or the trial counsel’s
argument that the silence was indicative of a consciousness of
guilt.
Discussion
Appellant now asserts that his right to remain silent under
the Fifth Amendment and Article 31 was violated when the trial
counsel elicited testimony from TSgt Moody about his post-
apprehension silence, and then argued that this silence reflected
appellant’s consciousness of guilt. Appellant further asserts
that the military judge exacerbated the error when he advised the
members that appellant had no obligation to testify at trial, but
did not advise them that he had the right to remain silent when
he was apprehended. Reply Brief on Behalf of Appellant at 9.
The Government does not concede error, but argues that the issue
was not preserved by a timely and specific objection, and that
any error was harmless beyond a reasonable doubt. Final Brief on
Behalf of the United States at 9-10.
Waiver
Mil.R.Evid. 103(a), Manual for Courts-Martial, United States
(2000 ed.),2 provides that error “may not be predicated” on a
ruling admitting evidence “unless the ruling materially
prejudices a substantial right of a party,” and there was a
timely and specific objection. Mil.R.Evid. 103(d) sets out the
plain error exception: “Nothing in this rule precludes taking
2
All Manual provisions cited are identical to the ones in effect
at the time of appellant’s court-martial.
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United States v. Alameda, No. 01-0534/AF
notice of plain errors that materially prejudice substantial
rights although they were not brought to the attention of the
military judge.”
When trial counsel first elicited the testimony from TSgt
Moody, it was not apparent that he intended to argue later that
appellant’s silence showed consciousness of guilt. The military
judge summarily overruled defense counsel’s relevance objection,
without allowing either side to articulate reasons for or against
admitting the testimony, and without articulating any rationale
for admitting the evidence. If the military judge had required
trial counsel to proffer a theory of relevance, the possible
implication of the Fifth Amendment might have been apparent much
earlier in the trial. We hold that defense counsel’s objection
challenging the relevance of TSgt Moody’s testimony was
sufficient to preserve the issue of the admissibility of that
testimony in light of Mil.R.Evid. 304(h)(3). We further hold
that defense counsel’s timely objection to trial counsel’s
argument was sufficient to preserve the constitutional and
statutory issues arising from trial counsel’s use of the evidence
as substantive proof of guilt.
Relevance
Paragraph 140a(4) of the Manual for Courts-Martial, United
States, 1969 (Rev. ed.), specifically recognized admissions by
silence. It provided:
If an imputation against a person comes to his
attention under circumstances that would reasonably
call for a denial by him of the accuracy of the
imputation if the imputation was not true, a failure on
his part to utter such a denial will support an
inference that he thereby admitted the truth of the
imputation.
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This provision has since been deleted, but “admissions by silence
continue to be recognized in both military and civilian federal
practice.” United States v. Cook, 48 M.J. 236, 240 (1998); see
also United States v. Stanley, 21 M.J. 249, 250 (CMA 1986)(silence
considered an admission “under certain circumstances”).
Mil.R.Evid. 304(h)(3) states when the inference may not be
drawn. It provides:
A person’s failure to deny an accusation of wrongdoing
concerning an offense for which at the time of the
alleged failure the person was under official
investigation or was in confinement, arrest, or custody
does not support an inference of an admission of the
truth of the accusation.
See United States v. Colcol, 16 M.J. 479, 484 n.4 (CMA 1983)
(prearrest silence usually inadmissible and not an act from which
guilt can be inferred).
We review a military judge’s decision to admit evidence for
abuse of discretion. If the military judge makes findings of
fact, we review the findings under a clearly-erroneous standard
of review. We review conclusions of law de novo. United States
v. Sullivan, 42 M.J. 360, 363 (1995).
In this case, the military judge made no findings of fact or
explicit conclusions of law. Thus, we review his application of
the law de novo.
TSgt Moody advised appellant that he was being apprehended
for an “alleged assault.” Appellant had a history of domestic
violence, had been accused of assaulting his wife less that two
weeks earlier, and had been ordered to stay away from her because
of the incident. Under these circumstances, his failure to deny
one more allegation of “alleged assault” does not support an
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inference of guilt. Thus, we conclude that appellant’s lack of
response was not relevant.
Finally, even if appellant’s silence constituted an
admission, it would admit only an “alleged assault,” not
attempted premeditated murder. We hold that the military judge
erred by admitting the evidence of appellant’s silence as
substantive evidence of guilt.
Closing Argument
The privilege against self-incrimination recognized in
Article 31(a), supra, is virtually identical to the privilege
under the Fifth Amendment. Thus, our Fifth Amendment analysis
also applies to Article 31(a).
In closing argument, the trial counsel was permitted to
argue, over defense objection, that appellant’s lack of response
when he was apprehended for an “alleged assault” reflected his
consciousness of guilt of premeditated murder. Issues involving
argument referring to unlawful subject matter are reviewed de
novo as issues of law. See 2 Steven Childress & Martha Davis,
Federal Standards of Review, § 11.23 (3d ed. 1999).
The federal circuits distinguish between pre-arrest and
post-arrest silence. They are divided on the question whether
the prosecution may argue that pre-arrest silence is evidence of
guilt. However, the First, Sixth, Seventh, and Tenth Circuits,
constituting a majority of the circuits that have addressed the
issue, have held that use of pre-arrest silence as substantive
evidence of guilt violates the Fifth Amendment. These circuits
maintain “that application of the privilege is not limited to
persons in custody or charged with a crime; it may also be
19
United States v. Alameda, No. 01-0534/AF
asserted by a suspect who is questioned during the investigation
of a crime.” Coppola v. Powell, 878 F.2d 1562, 1565 (1st Cir.
1989); see Combs v. Coyle, 205 F.3d 269, 282-83 (6th Cir.
2000)(citing Coppola, supra); United States v. Burson, 952 F.2d
1196, 1201 (10th Cir. 1991); United States ex rel. Savory v.
Lane, 832 F.2d 1011, 1017 (7th Cir. 1987) (summarizing the split
in the federal circuits and holding that comment on pre-arrest
silence violates Fifth Amendment).
The Ninth Circuit has held that use of post-arrest, pre-
Miranda3 silence as substantive evidence of guilt violates the
Fifth Amendment. United States v. Velarde-Gomez, 269 F.3d 1023,
1028 (9th Cir. 2001). A lack of response or reaction to an
accusation is not “demeanor” evidence, but a failure to speak.
Id. at 1031.
Mil.R.Evid. 304(h)(3) makes no distinction between pre-
arrest and post-arrest silence. It applies to any person who
“was under official investigation or was in confinement, arrest,
or custody.”
This case involves post-apprehension,4 pre-Miranda silence.
We conclude, based on the language of Mil.R.Evid. 304(h)(3) and
what we perceive to be the weight of authority in the federal
circuits, that the military judge committed constitutional error
by permitting the prosecution to introduce evidence of
3
Miranda v. Arizona, 384 U.S. 436 (1966).
4
Military cases use the term “apprehension” to mean the same
thing as “arrest” in civilian cases. This difference in
terminology is based on the definitions of “apprehension” and
“arrest” in Articles 7 and 9, Uniform Code of Military Justice
10 USC §§ 807 and 809, respectively.
20
United States v. Alameda, No. 01-0534/AF
appellant’s post-apprehension silence as substantive evidence of
guilt, and to then comment on that evidence in closing argument.
Curative Instructions
When a military judge instructs the members, the question
whether the content of the instruction is legally correct is
reviewed de novo. See United States v. Quintanilla, 56 M.J. 37, 83
(2001).
When defense counsel objected to trial counsel’s argument
that appellant’s silence showed a consciousness of guilt, the
military judge instructed the members that appellant had “no
obligation to make any statement during the trial in his
defense.” (Emphasis added.) When defense counsel objected
again, the military judge instructed the members that “nothing
will be held against this accused because he did not say anything
in his defense.” In our view, these instructions were off the
mark because they did not address the question whether any
adverse inference could be drawn from appellant’s silence at the
time of his apprehension.
Instead of curing the error, the instructions may have
exacerbated it. The instructions focused only on trial testimony
and failed to address appellant’s pretrial silence. This
omission may have led the members to conclude that, while no
adverse inference could be drawn from appellant’s failure to
testify at trial, the members were permitted to draw an adverse
inference from appellant’s silence at the time of his
apprehension. Accordingly, we conclude that the military judge’s
instruction did not cure the error and may have exacerbated it.
21
United States v. Alameda, No. 01-0534/AF
Harmless Error
This Court reviews de novo whether an error was harmless.
United States v. Grijalva, 55 M.J. 223, 228 (2001). We consider
the four following factors to evaluate prejudice from erroneous
evidentiary rulings: “(1) the strength of the Government’s case,
(2) the strength of the defense case, (3) the materiality of the
evidence in question, and (4) the quality of the evidence in
question.” United States v. Kerr, 51 M.J. 401, 405 (1999)(citing
United States v. Weeks, 20 M.J. 22, 25 (CMA 1985)). We will apply
these factors to analyze the cumulative impact of the erroneous
admission of the masking tape, latex gloves, and utility knife,
as well as the erroneous admission of testimony about appellant’s
pretrial silence as substantive evidence of guilt.
To analyze the impact of trial counsel’s impermissible
comment on appellant’s silence, we must first determine whether
this error is of constitutional magnitude. For constitutional
error, we must be satisfied beyond a reasonable doubt that the
error was harmless. Chapman v. California, 386 U.S. 18, 24
(1967). For non-constitutional error, we must be satisfied that
“the judgment was not substantially swayed by the error.”
Kotteakos v. United States, 328 U.S. 750, 765 (1946). If we are
not satisfied, or if we are “left in grave doubt, the conviction
cannot stand.” Id.
The Supreme Court has drawn a distinction between direct
review and collateral review in determining if impermissible
comment on pretrial silence was harmless. The Supreme Court has
applied the Chapman standard to direct review, and the less
onerous Kotteakos standard to collateral review. Brecht v.
22
United States v. Alameda, No. 01-0534/AF
Abrahamson, 507 U.S. 619, 634-38 (1993). Because this case is on
direct review, we apply the Chapman standard.
Applying the four-pronged Weeks factors, we are satisfied
beyond a reasonable doubt that the errors were harmless with
respect to the two offenses on April 30. Neither the irrelevant
evidence nor the inadmissible evidence of appellant’s silence
pertained to these offenses.
We are likewise satisfied beyond a reasonable doubt with
respect to appellant’s conviction of violating the “stay away”
order on May 19. Mrs. Alameda’s testimony was corroborated by
the witnesses who observed the scratches on her nose and
abrasions on her neck, the witnesses who observed appellant’s car
parked near the residence, TSgt Moody’s description of the open
bedroom window with the blinds hanging out, and the testimony of
1Lt Haussler and Melanie Young about Mrs. Alameda’s demeanor
immediately after her confrontation with appellant.
However, we are not persuaded beyond a reasonable doubt that
the errors were harmless with respect the court members’ finding
that appellant acted with a premeditated design to kill Mrs.
Alameda. At trial, the military judge correctly instructed the
members that the elements of attempted premeditated murder were:
(1) That at or near Kadena Air Base, Okinawa, Japan, on
or about 19 May 1998, the accused did certain acts,
that is: attempt to murder Marla D. Alameda by means of
suffocating and choking her with his hands and a
plastic bag;
(2) That such acts were done with the specific intent
to kill Marla D. Alameda; that is, to kill without
justification or excuse;
(3) That such acts amount to more that mere
preparation; that is, they were a substantial step and
23
United States v. Alameda, No. 01-0534/AF
a direct movement toward the unlawful killing of Marla
D. Alameda;
(4) That such acts apparently tended to bring about the
commission of the offense of premeditated murder; that
is, the acts apparently would have resulted in the
actual commission of the offense of premeditated murder
except for an unexpected intervening circumstance which
prevented completion of that offense; and
(5) That at the time the accused committed the acts
alleged, he had the premeditated design to kill Marla
D. Alameda.
See Paragraphs 4b and 43b(1), Part IV, Manual, supra. He also
instructed them on the elements of the following lesser-included
offenses: attempted unpremeditated murder, attempted voluntary
manslaughter, aggravated assault, and assault consummated by a
battery. See Paragraphs 43b(2), 44b(1), 54b(4)(a), and 54b(2),
Part IV, Manual, supra, respectively.
At trial, the prosecution’s proof of the elements of
premeditation and intent to kill consisted of the following:
(1) Mrs. Alameda’s testimony that appellant removed an
unused garbage bag from his pocket and attempted to place it over
her head;
(2) the unopened roll of masking tape, a utility knife in
its original package, and an unopened package of latex gloves,
found in a common dormitory bathroom;
(3) a box of Hefty garbage bags with one bag removed and
appellant’s fingerprints on the box; and
(4) TSgt Moody’s testimony regarding appellant’s silence at
the time of his apprehension.
The court below held that the masking tape, utility knife,
and latex gloves were not sufficiently connected to appellant to
be relevant. The Government has not contested that holding, and
we are satisfied that it is not “clearly erroneous,” nor would it
“‘work a manifest injustice’ if the parties were bound by it.”
Accordingly, it is the law of the case. United States v. Doss,
24
United States v. Alameda, No. 01-0534/AF
___ MJ (7 n.*) (2002)(citing Christianson v. Colt Industries
Operating Corp., 486 U.S. 800, 817 (1988)).
In light of our holding that appellant’s silence was not
admissible proof of the substantive offense, the only remaining
proof of appellant’s premeditated attempt to kill was the box of
Hefty garbage bags bearing appellant’s fingerprints, Mrs.
Alameda’s testimony that appellant tried to put a Hefty garbage
bag over her head, and the abrasions on Mrs. Alameda’s neck.
Mrs. Alameda’s testimony was not entirely consistent with an
attempted premeditated murder. She testified that she became
hysterical when appellant came to the house, and that he then sat
down on a couch and wanted to talk. Mrs. Alameda testified that
he tried to calm her down. She also testified that after she ran
into the bedroom and told appellant that she would talk to him,
he stopped moving toward her and began walking toward the living
room, thereby allowing her to escape through the bedroom window.
Likewise, the only remaining admissible evidence of intent
to kill was the same box of Hefty garbage bags bearing
appellant’s fingerprints, the abrasions on Mrs. Alameda’s neck,
and her testimony. Her testimony included both a statement that
appellant sought to strangle or suffocate her with a garbage bag,
as well as a statement that appellant subsequently agreed to return
to the living room to talk, at which time she made good her
escape.
After considering the admissible evidence of premeditation
and intent to kill, we are not satisfied beyond a reasonable
doubt that the members would have convicted appellant of
attempted premeditated murder, the lesser-included offenses of
25
United States v. Alameda, No. 01-0534/AF
attempted unpremeditated murder or attempted voluntary
manslaughter, without (1) the testimony about appellant’s
silence, (2) the masking tape, the latex gloves, and the utility
knife, (3) the improper comment of trial counsel on appellant’s
silence, and (4) the instruction of the military judge that may
have exacerbated the impact of trial counsel’s argument.
Accordingly, we must reverse the lower court’s decision with
respect to Charge I and its specification, alleging attempted
premeditated murder.
The court below concluded that admission of irrelevant
evidence (the masking tape, latex gloves, and utility knife) was
harmless beyond a reasonable doubt with respect to the charge of
attempted premeditated murder. However, that court has not
considered whether the cumulative effect of that error, combined
with the errors of constitutional magnitude found by this Court,
were harmless beyond a reasonable doubt with respect to the
lesser-included offenses of aggravated assault or assault
consummated by a battery. Accordingly, we conclude that a remand
for further review under Article 66(c), UCMJ, 10 USC § 866(c), is
appropriate.
Decision
The decision of the United States Air Force Court of
Criminal Appeals is reversed with respect to Charge I and its
specification and as to the sentence. In all other respects, the
decision below is affirmed. The findings of guilty of Charge I
and its specification and the sentence are set aside. The record
of trial is returned to the Judge Advocate General of the Air
Force for remand to the Court of Criminal Appeals. That court
26
United States v. Alameda, No. 01-0534/AF
will review the record to determine if the errors were harmless
beyond a reasonable doubt with respect to the lesser-included
offenses that do not contain elements of premeditation or intent
to kill, i.e., aggravated assault and assault consummated by a
battery; and whether the remaining evidence is factually and
legally sufficient to support a conviction of aggravated assault
or assault consummated by a battery. The court may reassess the
sentence or order a sentence rehearing. As an alternative to
further review of the record with respect to the lesser-included
offenses of Charge I and its specification, the court may order a
rehearing on the charge of attempted premeditated murder and the
sentence. Thereafter, Article 67, UCMJ, 10 USC § 867, will
apply.
27
United States v. Alameda, No. 01-0534/AF
EFFRON, Judge (concurring in part and dissenting in part):
In the present case, trial counsel elicited testimony
concerning appellant’s post-apprehension silence, and then asked
the court-martial members to view appellant’s silence as
reflecting consciousness of guilt. I agree with the majority's
determination that trial counsel’s comments violated the
protections against self-incrimination in the Fifth Amendment,
U.S. Const. amend. V, and Mil.R.Evid. 304(h)(3), Manual for
Courts-Martial, United States (2000 ed.), and that the comments
were prejudicial with respect to the charge of attempted
premeditated murder. I respectfully disagree with the
majority’s suggestion that this error may have been harmless
with respect to lesser included offenses.
In the face of such a constitutional violation, the burden
is on the Government to demonstrate that the error was harmless
beyond a reasonable doubt. See ___ MJ at (23) (citing Chapman
v. California, 386 U.S. 18, 24 (1967)). Under Chapman, an
appellate court must determine “whether there is a reasonable
possibility that the evidence complained of might have
contributed to the conviction.” Chapman, 386 U.S. at 23.
The record of trial demonstrates that the Government has
failed to show that the error was harmless beyond a reasonable
doubt. The testimony concerning appellant’s silence established
United States v. Alameda, No. 01-0534/AF
that appellant did not respond when law enforcement officials
informed appellant that he was being arrested for an “alleged
assault.” Trial counsel’s subsequent argument that appellant’s
silence indicated “consciousness of guilt” encouraged the
members to infer guilt on the grounds that appellant’s silence
amounted to a confession that he had attacked his wife on the
day in question. Given the powerful nature of such evidence,
the Government faces a very high hurdle in terms of
demonstrating that the error was harmless beyond a reasonable
doubt. In this case, the Government’s challenge is made all the
more difficult by the military judge’s comments. Instead of
giving a proper curative instruction, the military judge
validated trial counsel’s argument by opining that it was a
“fair comment on the state of the evidence.”
The prejudicial impact of the error is underscored by the
fact that trial counsel did not limit his argument concerning
“consciousness of guilt” to the element of intent. The improper
argument was made while trial counsel was discussing appellant’s
opportunity to commit the attack on his wife. It was not
restricted to a demonstration of intent, but was presented to
the members as an admission that appellant attacked his wife on
May 19, 1998. Given the breadth of the argument, the
prejudicial effect is not limited to the offenses involving
2
United States v. Alameda, No. 01-0534/AF
intent to kill, but extends to all offenses arising from the
alleged attack.
Excluding evidence of appellant’s silence and the other
evidence determined to be inadmissible by the Court of Criminal
Appeals, the only remaining evidence of guilt consisted of the
testimony of appellant’s wife that he tried to strangle her with
a Hefty garbage bag, a box of Hefty garbage bags with
appellant’s fingerprints, and abrasions on Mrs. Alameda’s neck.
See ___ MJ at (26). The issue in this case is not whether such
evidence would be adequate to establish the legal sufficiency of
a conviction, see Jackson v. Virginia, 443 U.S. 307, 319 (1979),
but whether there is a reasonable possibility that the error
“might have contributed to the conviction.” Chapman, 386 U.S. at
23. In the present case, there is a substantial possibility
that the members viewed trial counsel’s assertion -- that the
evidence demonstrated appellant’s consciousness of guilt -- as
substantially bolstering the credibility of the evidence against
him, particularly the critical testimony from his wife. The
prejudicial impact was compounded by the comments from the
military judge which tended to validate trial counsel’s
argument. “Under these circumstances, it is completely
impossible for us to say that the [Government] has demonstrated,
beyond a reasonable doubt, that the [trial counsel’s] comments
and the trial judge’s instruction did not contribute to
3
United States v. Alameda, No. 01-0534/AF
[appellant’s] conviction.” Id. at 26. We should set aside the
findings with respect to Charge I and authorize a rehearing.
4
United States v. Alameda, Jr., No 01-0534/AF
CRAWFORD, Chief Judge (dissenting):
I dissent because: (1) trial defense counsel made no
specific objection; (2) there was no Fifth Amendment, U.S.
Const. amend. V, violation; (3) there was no Article 31, Uniform
Code of Military Justice (UCMJ), 10 USC § 831, violation; and
(4) the evidence of appellant’s intent to kill is overwhelming,
making any error harmless beyond a reasonable doubt.
FACTS
On May 19, 1998, appellant attempted to kill his wife,
Marla Alameda. His acts are corroborated not only by several
items of physical evidence, but also by the testimony of
numerous witnesses. From 1991 until the date of the attempted
murder, appellant abused his wife both physically and mentally.
Appellant was a jealous, suspicious, and controlling individual.
The physical and mental abuse was such that Mrs. Alameda had
previously been medically evacuated from Japan to the United
States.
On April 30, 1998, while his wife was asleep, appellant
scrutinized his wife’s chat room messages that she had saved on
her computer. He found a message that implied that a person she
chatted with would soon be visiting Japan where they lived.
Appellant woke her up and confronted her. He demanded she
explain what happened, and became so enraged that he threw the
United States v. Alameda, Jr., No 01-0534/AF
computer off the desk, ripped the phone off the wall, and then
assaulted her, leaving her bruised, shaken, and scared. He told
her, “If you screw me, you better put me in jail or I will kill
you.” Appellant eventually left for work.
Based on moral and physical support from her friends, she
reported this assault to appellant’s commander. As a result,
appellant was ordered out of their on-base quarters and put in a
dormitory room. Further, he was given a direct order, both
verbally and in writing, not to have any contact with his wife
and son. An early return of dependents (ERD) package was
initiated. Despite appellant’s refusal to sign the required
papers, the command processed the action.
On May 19, Mrs. Alameda called appellant’s squadron to
obtain money for groceries and was told that someone would
deliver the money that day. When informed that his wife needed
money, appellant refused to give her any cash. He said, “I will
go buy her the groceries and I will deliver them to the house
myself.” Because of the no contact order, two escorts
accompanied him when he delivered the groceries to the house.
He then inspected each room. Finding condoms in the bedroom, he
became very upset. Appellant left the house with the escorts
and then told his squadron that he was going to speak with the
chaplain.
2
United States v. Alameda, Jr., No 01-0534/AF
When his wife returned home from work, she noticed the
groceries had been delivered and that various personal items
were moved. She was upset and called the unit commander, First
Lieutenant (1Lt) Deborah Haussler, who calmed her down and
reminded her that the ERD package would be expedited. 1Lt
Haussler asked her to come to the unit to sign the ERD paperwork
at 3:30 P.M.
Five or ten minutes later, Mrs. Alameda heard the doorbell
ring and opened the door. It was appellant. She stood there
frozen in terror and panic. Appellant pushed his way into the
house and began yelling and screaming. He wrestled her from
room to room and tried to suffocate her, first with his hands
and then by using a Hefty garbage bag. Before he was able to
put the garbage bag over her head, she was able to escape to the
bedroom and lock the door. She climbed out of a window, went to
a neighbor’s house, and called for help. This led to the charge
of attempted premeditated murder.
During the opening statement, trial defense counsel admitted
that the fight on April 30 occurred, but denied appellant had
anything to do with the assault on May 19. In support of this
contention, he argued that appellant visited the chaplain’s
office between 2:00 P.M. and 3:30 P.M. on May 19. The reason
appellant visited the chaplain was because he had found condoms
in the bedroom of his home when he delivered the groceries.
3
United States v. Alameda, Jr., No 01-0534/AF
Appellant also called a friend from the chapel, at 2:09 P.M.,
during the course of his counseling session. After visiting the
chaplain, appellant went back to the barracks, unloaded his van,
and was sitting on the barracks porch when the police arrived at
4:00 P.M.
Appellant’s alibi defense was countered by the Government
with the testimony of a neighbor, who identified appellant’s van
near his house around 3:30 P.M. Another witness, Ms. Melanie
Young, the Alamedas' next door neighbor, heard screaming
followed by frantic pounding on her front door, as well as
pounding on another neighbor’s door shortly after 3:00 P.M. Ms.
Young found an hysterical Mrs. Alameda knocking on doors crying
“[h]elp me.” Ms. Young saw bruising and redness on various
parts of the victim’s body, as well as the open window through
which the victim escaped from her bedroom. Mrs. Alameda told
Ms. Young that appellant had come home, knocked on the door, and
then tried to kill her by choking her.
The Government’s theory of the case was that appellant
intended to kill his wife without being caught. Using the
chaplain’s counseling session as an alibi was a part of
appellant’s scheme. Another means utilized by appellant for
4
United States v. Alameda, Jr., No 01-0534/AF
avoiding detection was the use of latex gloves to preclude
fingerprinting and masking tape to muffle any sounds.1
Appellant was charged with attempting to kill his wife.
Both before and after his arrest, appellant did not make any
statement such as “I could not have done that,” “I wasn’t
there,” or ask, “Why are you arresting me?” During his
questioning of Technical Sergeant (TSgt) Moody, a member of the
Air Force Security Forces (Security Forces), the assistant trial
counsel conducted the following direct examination:
Q. So, after your back-up arrived, what did you do next?
A. After my back-up arrived, I got out of the vehicle
and I pretty much approached Airman Alameda. In
route to approaching Airman Alameda, I came by his
van and I just kind of rubbed my hand across his
van to try and determine whether or not the van had
just been operated. I was unable to tell because
the van was hot and it was a hot day out and I was
unable to tell whether the motor had just been
running because the motor is encased.
And so, I approached Airman Alameda and asked him if he
was Airman Alameda, and he said that he was. The
gentleman who was next to him, I asked him if he could
just move out of the way. I asked Airman Alameda for an
ID card to prove that he was Airman Alameda. He did show
me an ID card.
Q. Did he ask any other questions during this time?
A. No.
1
This Court is not bound by the lower court’s decision that the utility
knife, masking tape, and latex gloves were not relevant evidence. See United
States v. Walker, ___ MJ ___ (2002) (Sullivan, S.J., joined by Crawford, C.J.,
dissenting). Even without this evidence, there is substantial evidence of
the premeditated intent to kill.
5
United States v. Alameda, Jr., No 01-0534/AF
Q. Did he say anything, like "What do you want? What
are you here for?" or anything like that?
A. No.
DC: Objection, Your Honor. Irrelevant.
MJ: Overruled.
[Questions by assistant trial counsel]
Q. Did he make any such statement as that?
A. No, sir, he did not.
Drawing from this colloquy, appellant states:
Thus, without question, the prosecutor elicited
testimony from the arresting officer, a member of
the Air Force Security Forces, that [appellant]
remained silent after he was placed under arrest.
The prosecutor later emphasized that fact in
argument as an indication of consciousness of
guilt.
Although an entirely appropriate objection was
made, it was overruled and the trial counsel
continued.
Brief on Behalf of Appellant at 7 (emphasis in original).
However, several key factors undercut appellant's argument.
All questions and answers transpiring prior to appellant's
relevance objection concerned appellant's silence before he was
placed under arrest. Clearly, the approaching Security Forces
officer said nothing to solicit a response from appellant other
than to ask for his identification card. In fact, there is no
evidence in the record of trial that anyone questioned appellant
outside his dormitory that evening.
6
United States v. Alameda, Jr., No 01-0534/AF
The only matter appellant objected to, based on relevance,
was the assistant trial counsel's questions concerning
appellant's reaction upon seeing the Security Forces officer.
It was only after the last question and answer quoted above that
TSgt Moody arguably placed appellant under arrest. The
testimony of TSgt Moody on direct examination continued as
follows:
Q. After you verified it was, in fact, Senior Airman
Tedio Alameda, what did you do next?
A. I informed him that he was going to be apprehended for
an alleged assault.
Q. And what did he say or do then?
A. He didn't say anything. He didn't do anything. He
had a look like [witness stared ahead] and that was
it.
Q. Did he ask you why he was being arrested?
A. No he did not.
The above questions and answers drew no objection from
trial defense counsel. The assistant trial counsel continued
his questioning:
Q. (Counsel). Did he act like he knew what was going
on?
DC: Objection, Your Honor. Calls for speculation.
(Emphasis added.)
MJ: Again, you can ask him what he observed, but you
can’t ask him for those types of conclusion of
whether or not he did understand.
7
United States v. Alameda, Jr., No 01-0534/AF
Q. So, again, when you asked Airman Alameda for his ID
card, did he say anything?
A. No, sir.
Q. And when you told him that he was being apprehended, did
he say anything?
A. He said --
DC: Objection. Asked and answered, Your Honor.
(Emphasis added.)
MJ: I'll allow it, as long as you move on.
Q. Yes, Your Honor.
Q. How would you describe Airman Alameda's reaction
after you told him he was being placed under
arrest?
A. Once again, just as in the previous situation where
I had made contact with Airman Alameda, he didn't
have much of a reaction or much emotion at all.
Trial defense counsel raised two objections. The first was
"speculation." The military judge essentially sustained that
objection by counseling the assistant trial counsel not to ask
questions about what appellant's thoughts were. However, for
purposes of the issues he now raises on appeal, appellant's
objection was off the mark. Trial defense counsel did not
comment on the judge's ruling because the military judge ruled
appropriately on the defense objection.
The second objection, "asked and answered," occurred after
the assistant trial counsel asked TSgt Moody if appellant said
8
United States v. Alameda, Jr., No 01-0534/AF
anything while he was being arrested. The military judge
responded by telling the assistant trial counsel to move along.
The judge’s ruling granted relief to the defense in response to
the specifically raised objection. TSgt Moody responded,
appellant "didn't have much of a reaction or much emotion at
all." He did not comment directly on what appellant said or did
not say.
In a lengthy closing argument, the Government mentioned that
when the Special Forces came, the defendant never asked why they
were present. Additionally, the Government made reference to
the items found -- the rubber gloves, the knife and tape -- as
evidence of consciousness of guilt and a premeditated intent to
murder.
DISCUSSION
MIL.R.EVID. 103
Mil.R.Evid. 103(a)(1), Manual for Courts-Martial, United
States (2000 ed.), requires a “timely objection ... stating the
specific ground of objection, if the specific ground was not
apparent from the context....” “Further, [t]he burden is placed
on the party opponent [to make the objection], not the judge.”2
Where the evidence is otherwise admissible, it is not the
judge’s role to require a proffer to show that it is admissible.
2
John W. Strong, 1 McCormick On Evidence § 52 at 220 (5th ed. 1999).
9
United States v. Alameda, Jr., No 01-0534/AF
Likewise, a general objection that the evidence is irrelevant
will not suffice.3 Furthermore, the objection only preserves the
specific ground named. Thus, even though there was a good but
unnamed objection, that objection will not be considered on
appeal.4
In this instance, the only objection made to appellant’s
pre-arrest silence was relevance. This objection did not
preserve any potential objection to the evidence pursuant to the
strictures of Article 31, the Fifth Amendment, or Mil.R.Evid.
304(h)(3). Trial defense counsel’s other objections
(“speculation” and “asked and answered”), likewise did not
preserve the issues now addressed.
CONTRADICTION
During the trial, from the opening statement through trial
defense counsel’s examination of the witnesses, the defense’s
3
United States v. Sandini, 803 F.2d 123, 126-27 (3d Cir. 1986). See United
States v. Adkins, 196 F.3d 1112, 1116 n.3 (10th Cir. 1999)(a nonspecific
objection does not preserve a Rule 403 objection); United States v. Wilson,
966 F.2d 243, 245-46 (7th Cir. 1992)(failure to cite Rule 403, or mention the
prejudicial effect of the evidence, constitutes waiver); United States v.
Mejia, 909 F.2d 242, 246 (7th Cir. 1990)(relevance objection does not
preserve Rule 403 or Rule 404(b) objection); United States v. Gomez-Norena,
908 F.2d 497, 500 (9th Cir. 1990)(only making the correct specific objection
preserves issue for appeal); Bryant v. Consolidated Rail Corp., 672 F.2d 217,
220 n.4 (1st Cir. 1982)(relevance objection does not preserve ruling under
Rule 404).
4
United States v. Gomez-Norena, supra. See also United States v. Brewer, 43
M.J. 43, 47 n.2 (1995)(failure to make specific objection constitutes waiver
absent plain error).
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United States v. Alameda, Jr., No 01-0534/AF
theory of the case was alibi;5 appellant was with the chaplain
and it would have been physically impossible for him to attempt
to kill his wife. Appellant’s silence at the time of arrest
undermines the defense theory. His silence confirms both the
direct and circumstantial evidence that he committed the
offense.
FIFTH AMENDMENT and ARTICLE 31
The Fifth Amendment, supra, states: “No person ... shall
be compelled in any criminal case to be a witness against
himself....” Likewise, Article 31(d) prohibits the admission of
statements obtained as a result of coercion or unlawful
inducement. Thus, at trial, the prosecution may not use the
evidence that appellant stood mute. Miranda v. Arizona, 384
U.S. 436, 468 n.37 (1966).
Setting aside demeanor evidence at the time of arrest,
silence has been recognized as evidence of guilt for hundreds of
years. “An early exposition of the rule is the maxim of Pope
Boniface VIII: “Qui tacet, consentire videtur,” or “He who is
silent shows agreement.” 5 Pope Boniface VIII, Book of
Decretals, ch. 12 § 43 (c. 1300). United States v. Cook,
5
See, e.g., Shafer v. South Carolina, 532 U.S. 36 (2001)(prosecutor’s
closing argument that Shafer and his two accomplices “might come back” opened
the door to show future dangerousness and required an instruction of life
without parole); United States v. Franklin, 35 M.J. 311, 317 (CMA 1992)(trial
defense counsel’s opening statement opened the door to the issue of intent).
See also United States v. Turner, 39 M.J. 259, 263 n.2, 266-67 (CMA 1994).
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48 M.J. 236, 241 n.l (1998)(Crawford, J., dissenting). Certainly
silence is ambiguous. But many courts have recognized that
absent a Miranda warning, silence may be admitted.
The Supreme Court has addressed the issue of pre-arrest
silence and post-arrest silence, absent Miranda warnings. While
federal courts are split on the admission of silence as
substantive evidence,6 some have allowed prosecutors to comment
on such evidence. In Jenkins v. Anderson, 447 U.S. 231, 238,
240 (1980), and Fletcher v. Weir, 455 U.S. 603, 607 (1982)(per
curiam), the Court held that absent Miranda warnings, pre-arrest
or post-arrest silence may be used to impeach a defendant.
In Jenkins, the defendant, who was indicted for murder,
claimed that he acted in self-defense. Jenkins, 447 U.S. at
233. At trial, the prosecution cross-examined Jenkins about his
failure to explain his version of events to the police for at
least two weeks. Id. The prosecutor also referred to the
defendant’s previous silence in his closing argument. Id. at
234. On appeal the Supreme Court held7 that the Fifth Amendment,
supra, was not violated by the prosecutor’s use of the
6
Three circuits have indicated that silence as substantive evidence of guilt
is admissible in the prosecution’s case-in-chief. See, e.g., United States
v. Oplinger, 150 F.3d 1061 (9th Cir. 1998); United States v. Zanabria, 74
F.3d 590 (5th Cir. 1996); United States v. Rivera, 944 F.2d 1563 (11th Cir.
1991). Four have concluded otherwise. See, e.g., Combs v. Coyle, 205 F.3d
269, 283 (6th Cir. 2000); United States v. Burson, 952 F.2d 1196 (10th Cir.
1991); Coppola v. Powell, 878 F.2d 1562 (1st Cir. 1989); United States ex
rel. Savory v. Lane, 832 F.2d 1011 (7th Cir. 1987).
7
Justice Powell wrote the majority opinion. Justice Stevens concurred in the
judgment and Justices Brennan and Marshall dissented.
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United States v. Alameda, Jr., No 01-0534/AF
defendant’s pre-arrest silence to impeach his credibility. Id.
at 238. The Court expressly noted that it did “not consider
whether or under what circumstances prearrest silence may be
protected by the Fifth Amendment.” Id. at 236 n.2.
Justice Stevens, concurring in the judgment, commented that
he “would reject [the defendant’s] Fifth Amendment claim because
the privilege against compulsory self-incrimination is simply
irrelevant to a citizen’s decision to remain silent when he is
under no official compulsion to speak.” Id. at 241 (footnote
omitted). Likewise, Justice Stevens noted that under his
approach, “assuming relevance, the evidence could have been used
not only for impeachment[,] but also in rebuttal even had
petitioner not taken the stand.” Id. at 244 n.7. In essence,
this evidence could be used to rebut Jenkins’ self-defense
theory.
The Court addressed post-arrest silence in Fletcher v. Weir,
supra. Following Jenkins, it held that post-arrest silence,
absent Miranda warnings, may be used to impeach the defendant at
trial. Fletcher, 455 U.S. at 607. In both cases the Court
noted that Miranda warnings, that might have induced silence,
were not given. While the Jenkins and Fletcher decisions permit
pre-arrest and post-arrest silence, absent a Miranda warning, to
be used for impeachment, they did not address the use of such
silence as substantive evidence. Nonetheless, the Justices’
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rationale in these opinions, coupled with the Fifth Amendment’s
history, would permit the Government to use appellant’s silence
under the facts of this case.
While the federal courts are split on whether to permit use
of pre-arrest silence and post-arrest silence as substantive
evidence in the absence of rights warnings, the courts have
permitted the prosecution to argue inferences arising from an
individual’s conduct at the time of arrest. In United States v.
Thompson, 82 F.3d 849 (9th Cir. 1996), the court permitted the
prosecutor to comment on the appellant’s silence at the time of his
arrest. Id. at 854. During a drug transaction in his house, the
appellant killed a man with muffled shots. When the police
arrived, the appellant answered some police questions but
refused to answer others because he said he was scared and
wanted to talk to a lawyer. Id. The detective who interviewed
the appellant testified that when he responds to this kind of
call he normally asks the people to indicate what happened, and
they “are more than eager to tell....” Id.
In Thompson, the prosecutor made the following comment
concerning the defendant’s refusal to answer police questions
before his arrest:
I am not going to make a big deal out of Mr.
Thompson’s response when the police come [sic] to
the door following this shooting. I’m not going
to make a big deal about it at all. But you got
to admit, it’s a little strange under the
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circumstance, have the police come in there, and
the first thing they’re going to say is, “What
happened?” “I want a lawyer.” I mean, that’s
strange. That’s not the way people in
circumstances that are legitimate are going to
react. They would probably be inclined to tell
the cop what happened; “This guy broke into my
apartment.” None of that happened. But then
again, this is Mr. Thompson.
Id. at n.7. After noting the split in federal courts on the
issue of silence as substantive evidence, the Ninth Circuit held
that the prosecutor’s comment was not plain error. Id. at 856
(citing United States v. Davenport, 929 F.2d 1169, 1174-75 (7th
Cir. 1991)).
In the case before us, TSgt Moody testified that appellant
did not say anything like “What do you want?”, or “What are you
here for?” However, TSgt Moody did describe appellant’s
demeanor. Asked if he reacted in any way, the witness indicated
that appellant “stared [straight] ahead.”
When an individual has received rights warnings and told of
the right to remain silent, silence becomes an intentional act.
It is the exercise of one’s right. But the privilege against
self-incrimination “protects an accused only from being
compelled to testify against himself, or otherwise provide ...
evidence of a testimonial or communicative nature....”
Schmerber v. California, 384 U.S. 757, 761 (1966). Neither the
Fifth Amendment nor Article 31 protects an individual from
giving physical evidence such as handwriting, voice exemplars,
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or demonstrating one’s sobriety. See Pennsylvania v. Muniz, 496
U.S. 582, 591 (1990).
Appellant was not an individual who was relaxed or
unemotional. His body language of looking straight ahead, when
confronted, was evidence that the court members could consider
and could be commented upon by the prosecution. Such evidence
is neither testimonial nor communicative in nature. While the
judge had the discretion to exclude the evidence, especially
after a proper objection, there was absolutely no abuse of
discretion in failing to do so.
The trial counsel’s comments in this case were a fair
response to the trial defense counsel’s opening statement and
examination of the witnesses. United States v. Shoff, 151 F.3d
889, 893 (8th Cir. 1998). Additionally, in an argument that
went more than 30 minutes, trial counsel’s statement that
appellant made no explanation and stared straight ahead, was
only a passing reference not requiring a reversal of the
conviction. See, e.g., United States v. Sidwell, 51 M.J. 262, 265
(1999).
Certainly, appellant’s reaction undercuts the defense’s
theory throughout the case that appellant had nothing to hide.
In fact, appellant recognized the impact of his silence because
the next day he told his escorts he was at the chaplain’s office
at the time of the offense, and wondered why he was being placed
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in pretrial confinement. He could have said that one day
earlier, but did not.
HARMLESS ERROR
The evidence in this case is overwhelming. The majority
recognizes that appellant may very well be guilty of a lesser-
included offense, but improperly assumes the lower court’s
Article 66(c), UCMJ, 10 USC § 866(c), role and makes findings
that are equivalent to findings of fact regarding premeditation
and appellant’s intent to kill. The evidence admitted at trial
of appellant’s intent to kill his wife is far greater than the
majority opinion indicates. I am particularly disturbed by the
majority’s failure to consider appellant placing a Hefty garbage
bag over the victim’s head and the use of deadly force with a
butcher knife to intimidate his wife on a prior occasion. The
majority’s view indicates that if a person assaults and wounds a
victim on one occasion, because the perpetrator intended to
assault and wound that victim, this same perpetrator could not
be convicted of attempting to murder the same victim at a later
date, even though that was the perpetrator’s specific intent.
Even if one were to accept the majority’s view that the evidence
of premeditation was inadmissible, there is more than sufficient
evidence that appellant intended to kill his wife. The Court of
Criminal Appeals should be able to consider unpremeditated
murder and manslaughter as lesser-included offenses.
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CONCLUSION
For all of these reasons, I respectfully dissent.
18