United States v. Palmer ( 2001 )


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  •                        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 M.J. 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 M.J. 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 M.J. 360
    , 363
    (1995).   The proponent of evidence has the burden of showing that
    it is admissible.     United States v. Shover, 
    45 M.J. 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 M.J. 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.
    7
    

Document Info

Docket Number: 01-0034-AR

Judges: Gierke

Filed Date: 6/29/2001

Precedential Status: Precedential

Modified Date: 10/19/2024