United States v. Staton , 69 M.J. 228 ( 2010 )

UNITED STATES, Appellee
v.
Timothy J. STATON, Staff Sergeant
U.S. Air Force, Appellant
No. 10-0237
Crim. App. No. 37356
United States Court of Appeals for the Armed Forces
Argued October 5, 2010
Decided December 1, 2010
BAKER, J., delivered the opinion of the Court, in which ERDMANN,
STUCKY and RYAN, JJ., joined. EFFRON, C.J., filed a separate
opinion concurring in the result.
Counsel
For Appellant: William E. Cassara, Esq. (argued); Captain
Andrew J. Unsicker (on brief); Major Michael A. Burnat and Major
Shannon A. Bennett.
For Appellee: Captain Joseph J. Kubler (argued); Gerald Bruce,
Esq. (on brief); Colonel Don M. Christensen and Lieutenant
Colonel Jeremy S. Weber.
Military Judge: Grant L. Kratz
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Staton, No. 10-0237/AF
Judge BAKER delivered the opinion of the Court.
A general court-martial composed of members convicted
Appellant, contrary to his pleas, of eight specifications of
assault consummated by battery upon a child under sixteen years,
in violation of Article 128, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 928 (2006). The adjudged and approved
sentence included confinement for three years, reduction to pay
grade E-1, and a bad-conduct discharge.
On review, the United States Air Force Court of Criminal
Appeals affirmed.1
We granted review of the following issue:
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN
ADMITTING EVIDENCE THAT APPELLANT MAY HAVE ATTEMPTED
TO KILL OR INJURE THE ORIGINAL TRIAL COUNSEL.
BACKGROUND
Appellant and Kari Staton were in a relationship for five
years and married for four. Some time after they were married
Kari Staton’s six-year-old son from a previous marriage, CJ,
came to live with them. In Kari Staton’s opinion, CJ was not
“an easy child to deal with.” Appellant would punish CJ when he
got into trouble. About six months after CJ moved in, the
punishment became physical.
1
United States v. Staton, 68 M.J. 569, 575 (A.F. Ct. Crim. App.
2009).
2
United States v. Staton, No. 10-0237/AF
Each of the specifications of Appellant’s charge correlate
to different implements Appellant used on CJ in what he termed
physical “discipline,” ranging from a fist, to a flyswatter, a
golf club, a wire coat hanger, a weight-lifting belt, a leather
belt, and a battle dress uniform belt. In July 2007, Appellant
grabbed CJ (then eleven years old) by the throat, raised him
several inches off the ground and slammed his head hard enough
to leave a “groove” in the wall.
On August 2, 2007, Appellant stated to a mental health
therapist, Calyn Crow, that he had on many occasions struck CJ
with a belt and had recently banged his head into a wall. The
next day, Lynn Merrit-Ford, the program director of a local
social services department, left a voice mail to inform
Appellant that an investigation was underway.
Captain (Capt) Stephanie Gilmore was the Chief of Military
Justice at the Space Wing legal office at Buckley Air Force
Base, Colorado. She had represented the Government at two
Article 32, UCMJ, 10 U.S.C. § 832 (2006), hearings involving
Appellant. She had also seen Appellant a number of times around
the base. On the morning of May 28, 2008, Capt Gilmore parked
in the commissary parking lot before a wing run. As she walked
toward the gym, she saw a car approach her driving quickly and
“could see through the front windshield of the car . . . that it
was Staff Sergeant Tim Staton.” The car “did not . . . slow
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down,” was “heading towards [Capt Gilmore],” and “swerved at the
last minute to miss [Capt Gilmore].” Capt Gilmore reported the
incident and was reassigned from her role as trial counsel in
the case. Appellant received a letter of reprimand for the
incident.
Prior to trial, the defense filed a motion in limine under
Military Rules of Evidence (M.R.E.) 403 and 404(b) to preclude
the Government from offering evidence involving the vehicle
incident as prior uncharged misconduct or as rebuttal to any
good military character evidence the defense might introduce.
In the motion, the defense stated that “SSgt Staton’s alleged
conduct while driving does not relate to the present charges.
Nor does the alleged conduct fall into any of the other
enumerated [M.R.E. 404(b)] exceptions.” The Government
responded during argument on the motion that “taking steps to
intimidate [trial counsel] to prevent the court-martial from
going forward is analogous [to witness intimidation] and shows
that he has consciousness of guilt, he doesn’t want the
proceeding to continue, or he wants to at least to interfere
[sic] with the smooth operation of those proceedings by making
intimidating acts.”
In written findings of fact and conclusions of law the
military judge concluded that “[e]vidence of intimidation of
witnesses or members of the prosecution is evidence which tends
4
United States v. Staton, No. 10-0237/AF
to show consciousness of guilt on the part of the accused as
discussed in United States v. Cook [48 M.J. 64 (C.A.A.F.
1998)].” With respect to balancing under M.R.E. 403, the
military judge concluded, “Any danger of unfair prejudice is
minimal and can be addressed with a tailored instruction.”
Appellant was subsequently tried before a general court-
martial for eight specifications of assault committed by battery
upon a child. The Government’s case included photographs of the
dent in the wall, as well as testimony from Calyn Crow (the
mental health therapist to whom SSgt. Staton self-reported);
Lynn Merrit-Ford, a social services program director, who spoke
to Appellant after he spoke with Ms. Crow; Pamela Wamhoff, a
family advocacy officer assigned to Appellant’s case; Kari
Staton (Appellant’s former wife); CJ; and Capt Gilmore. Capt
Gilmore testified that on May 28, 2008, Appellant drove his car
at her while she was in a parking lot, attempting to intimidate
her. Appellant disputes the admission of Capt Gilmore’s
testimony as evidence of uncharged misconduct.
Appellant claimed that while the incidents with his stepson
CJ took place, they fell within the parental discipline defense.
Appellant was found guilty of all specifications.
DISCUSSION
This Court reviews the military judge’s evidentiary rulings
for an abuse of discretion. United States v. McCollum, 58 M.J.
5
United States v. Staton, No. 10-0237/AF
323, 335 (C.A.A.F. 2003). We review the admissibility of
uncharged misconduct under M.R.E. 404(b) using the three-part
test articulated in United States v. Reynolds:
1. Does the evidence reasonably support a
finding by the court members that appellant
committed prior crimes, wrongs or acts?
2. What “fact . . . of consequence” is made
“more” or “less probable” by the existence of
this evidence?
3. Is the “probative value . . . substantially
outweighed by the danger of unfair prejudice”?
29 M.J. 105, 109 (C.M.A. 1989) (ellipses in original) (citations
omitted).
Evidence of uncharged misconduct is impermissible for the
purpose of showing a predisposition toward crime or criminal
character.2 However, uncharged misconduct can be admitted for
“other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident.”3 M.R.E. 404(b). In Cook, this Court concluded that
2
See, e.g., United States v. Diaz, 59 M.J. 79, 94 (C.A.A.F.
2003) (military judge abused his discretion in admitting
evidence of other injuries appellant allegedly inflicted on his
daughter in an effort to establish that he killed his daughter);
United States v. Rhodes, 61 M.J. 445, 453 (C.A.A.F. 2005)
(military judge abused his discretion in admitting evidence of a
meeting between a key government witness and appellant to show
appellant’s consciousness of guilt).
3
The Government also asserts that Appellant opened the door to
character evidence because the defense called three military
character witnesses at trial. We disagree. The prosecutor
intimidation evidence was introduced before Appellant’s good
6
United States v. Staton, No. 10-0237/AF
one of the “other purposes” for which uncharged misconduct may
be admissible is evidence of “consciousness of guilt.” 48 M.J.
at 66.
The parties agree that Reynolds provides the proper
framework to review for error in this case. They also agree
that prong one of the test is satisfied because the members
could reasonably conclude that the incident occurred. However,
the parties do not agree as to whether the incident in question
reflects consciousness of guilt. Further, to the extent it
does, the parties do not agree whether the probative value of
such an evidentiary inference was outweighed by the danger of
unfair prejudice. This Court’s analysis, thus, turns on prongs
two and three of the Reynolds test.
Prong two of the test asks whether the evidence makes a
“fact [that is] of consequence” in the case “more probable or
less probable.” This is a question of logical relevance. See
M.R.E. 401.
The Government contends, as the military judge concluded,
that the behavior of intimidating a prosecutor is indicative of
“consciousness of guilt” and analogous to instances of witness
intimidation. Appellant disputes the comparison to witness
intimidation, arguing that where witness intimidation could
military character evidence, therefore it is not properly
rebuttal evidence.
7
United States v. Staton, No. 10-0237/AF
prevent someone from testifying, prosecutor intimidation would
have no corresponding favorable outcome.4 Moreover, Appellant
proffers, the act of driving aggressively toward Capt Gilmore
could be an expression of frustration with being wrongly
accused, rather than a reflection of consciousness of guilt.
It is well established that witness intimidation is
relevant evidence to demonstrate consciousness of guilt. Cook,
48 M.J. at 66.5 However, courts have not had as many occasions
to address the subject of prosecution intimidation. Both
parties cite United States v. Copeland, 321 F.3d 582 (6th Cir.
2003), in support of their arguments; it is the only federal
case the parties cite on point.
In Copeland, the issue centered on the admission of
jailhouse statements by two defendants, who were overheard by a
third inmate, discussing “their intention to pay someone $500 to
‘get,’ that is, harm, the Assistant United States Attorney”
handling their case. Id. at 597. The Sixth Circuit concluded,
4
Appellant asserts “it is unreasonable to conclude that the
absence of an attorney would stop a trial from beginning.”
5
See also United States v. Gatto, 995 F.2d 449, 454 (3d Cir.
1993) (jurors may note threats or intimidation of witnesses);
United States v. Mickens, 926 F.2d 1323, 1328-29 (2d Cir. 1991)
(defendant’s hand gesture in the shape of a gun may be
considered by jury); United States v. Maddox, 944 F.2d 1223,
1230 (6th Cir. 1991) (jurors may consider defendant’s alleged
mouthing of the words “you’re dead”).
8
United States v. Staton, No. 10-0237/AF
first on the question of spoliation,6 that “there was no evidence
in the record that suggests that the removal of [the prosecutor]
would have had a significant effect upon the government’s
success at trial.” Id. at 598. Thus, the statements did not
indicate the defendants’ intention to destroy evidence and such
threats did not per se constitute evidence of spoliation. Id.As to consciousness of guilt, the court concluded the statements
were probative, “but the lack of specificity linking the
statements to the charged conduct permits only a weak
inference.” Id. at 598.
Appellant cites Copeland for the proposition that threats
against prosecutors are less probative than threats against
witnesses, if probative at all. The Government cites Copeland
for its ultimate conclusion that “the statements . . . possess
some probative value as to the defendants’ consciousness of
guilt.” Id.We conclude that both in concept and in the circumstances
of this case, the evidence of prosecutor intimidation raises an
inference from which a factfinder could reasonably infer
consciousness of guilt. While Copeland qualitatively
distinguished witness intimidation from prosecutor intimidation
on the rationale that the prosecutor intimidation at issue did
6
Spoliation, used here and in Copeland, refers to “[t]he
intentional destruction, mutilation, alteration, or concealment
of evidence.” Black’s Law Dictionary 1531 (9th ed. 2009).
9
United States v. Staton, No. 10-0237/AF
not involve spoliation of evidence, we believe the real question
is not one of analogy to witnesses, but one of consequence. If
an accused seeks to intimidate a prosecutor handling his case,
is such an act probative of consciousness of guilt?
This question may be informed by the sort of cost-benefit
analysis that Appellant urges this Court to consider (and which
features prominently in Copeland), which is, what would the
accused gain from doing this? But that question presumes the
issue to be solely a matter of spoliation. Conduct, as courts
well know, is not always driven by the rational cost-benefit
analysis of the probable effects of one’s behavior. To the
contrary, human nature sometimes prompts persons to strike out
at those who seek to reveal misconduct or expose illegal acts.
This might be done in anger, frustration, fear, an effort to
deter or all four reasons at once.7 Whether such an inference is
well founded in context is for the factfinder to decide. That
is also why the third prong of the Reynolds test in such cases
as in this case requires careful contextual analysis.
7
The Copeland court states, “[t]here are many conceivable
reasons why a defendant awaiting trial would threaten to harm
the prosecutor, including simple frustration with being wrongly
accused.” 321 F.3d at 598. The Copeland court provides no
empirical data or evidence for this statement and we do not
adopt it as part of our analysis. However, we do note that the
military judge contemplated such a possibility when considering
Appellant’s motion: in addressing trial counsel he asked, in
reference to a frustrated innocent accused as opposed to a
frustrated guilty accused, “[W]ith respect to consciousness of
guilt, how do I differentiate between these two people?”
10
United States v. Staton, No. 10-0237/AF
The third prong of the Reynolds test requires a weighing of
probative value and the danger of unfair prejudice; if the
probative value is “substantially outweighed” by the danger of
unfair prejudice, then the evidence should be excluded. The
general risk, of course, is that members will treat evidence of
uncharged acts as character evidence and use it to infer that an
accused has acted in character, and thus convict. That risk was
heightened in this case because the Government argued to the
members that Appellant’s conduct was driven by anger and a
volatile personality.
Thus, on the one hand, the members might have taken the
evidence of Appellant’s aggression toward the trial counsel and
extract from that the impermissible character-driven conclusion
that he was a violent person and therefore guilty of the charged
offense.
On the other hand, the military judge was cognizant of this
concern. He gave the parties ample opportunity to argue their
positions and he reached his conclusions of law following a
deliberate application of the Reynolds test on the record. And
while another judge might not characterize “[a]ny danger of
unfair prejudice” as “minimal,” as the military judge did in
this case, we do agree with the military judge that in this case
11
United States v. Staton, No. 10-0237/AF
the risk was addressed with a detailed and “tailored instruction
regarding appropriate use of this information.”8
In short, the military judge did not apply the wrong law or
erroneously reach facts. His limiting instruction and
statements on the record demonstrate knowledge and correct
application of the law. In view of our analysis above, the
military judge did not abuse his discretion in admitting
evidence of Appellant’s uncharged misconduct.
CONCLUSION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
8
See the text of the military judge’s instruction which appears
in the Appendix to this opinion.
12
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APPENDIX
The military judge’s limiting instruction stated:
You may consider the evidence regarding the accused
driving towards Captain Gilmore for the limited
purpose of its tendency, if any, to indicate an
intent to intimidate the prosecution in this case
and therefore as evidence of consciousness of guilt.
You may consider this evidence only under the
following circumstances: First, you may not
consider the evidence at all unless you believe it
was the accused driving the vehicle in question.
Second, you may only consider this evidence if you
believe it indicates an intent by the accused to
intimidate the prosecution in his case and that was
thus evidence of consciousness of guilt.
You may not consider this evidence for any other
purpose, and you may not conclude from this evidence
that the accused is a bad person, or has general
criminal tendencies and that he therefore committed
the offenses charged. Each offense must stand on
its own and you must keep the evidence of each
offense separate. The prosecution’s burden of proof
to establish the accused’s guilt beyond a reasonable
doubt remains as to each and every element of each
offense charged.
13
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EFFRON, Chief Judge (concurring in the result):
The military judge in the present case permitted the
prosecution to rely on an uncharged offense to prove that
Appellant committed charged, but unrelated, child abuse
offenses. Although uncharged misconduct may be used to prove
consciousness of guilt in certain circumstances, including cases
involving a prosecutor as the victim, the Government in the
present case did not establish the requisite factual or legal
predicate. For the reasons set forth below, I respectfully
disagree with the majority’s decision to uphold the military
judge’s ruling that the uncharged misconduct was admissible in
this case. I would affirm the decision below on the narrower
ground that the military judge’s error was not prejudicial under
the circumstances of this case.
The automobile incident
The charges against Appellant alleged various instances of
assaulting his stepson, a minor child. The Government sought to
introduce evidence of an unrelated incident involving an
automobile driven by Appellant. During a hearing on the
admissibility of this evidence, the Government presented
testimony from an officer regarding an incident that occurred
while the officer was serving as trial counsel in Appellant’s
case during an earlier stage of the proceedings.
United States v. Staton, No. 10-0237/AF
The officer testified that as she was walking across a
parking lot, she “noticed that there was a car coming from the
south end of the parking lot at quite a high rate of speed,”
which she estimated to be twenty miles per hour. At first, she
did not recognize the driver, but then she saw through the front
windshield that Appellant was driving the car.
According to the officer, Appellant looked at her and
continued to drive towards her. As the car got closer, she
“stopped because I saw that the car was heading towards me, and
didn’t appear to be slowing down to let me cross the street.”
She then “slowed down and started to back up.” She testified
that the car approached to within three to five yards of her and
swerved at the last minute to miss her.
The officer subsequently reported the incident. Appellant
received a letter of reprimand, and the Government removed the
officer from further participation in the case as trial counsel
in view of her status as a potential witness.
At the conclusion of her testimony, the military judge
asked the witness: “What did you take all of this to mean?”
The witness made four points in response. First, “I took it to
mean that he had an opportunity, he saw me in the parking lot,
he -- I’m certain has some anger towards me.” Second, “I know
he has anger towards the legal office in general with regards to
this court-martial.” Third, “And I think he started driving his
2
United States v. Staton, No. 10-0237/AF
car at me to intimidate me or to make some sort of showing of
power or intimidation.” Fourth, “I do not believe he was
attempting to hit me with his car.”
The Government did not present any further evidence. The
military judge ruled that the evidence was admissible to show
consciousness of guilt. In his findings of fact, the military
judge stated that the officer “took the accused’s actions as an
attempt to intimidate her, as Trial Counsel, and I find that a
reasonable fact-finder could also find the actions to be
evidence of an intent to intimidate Trial Counsel, and thus is
evidence of consciousness of guilt.”
At trial, the officer’s testimony was consistent with her
testimony at the motion hearing. The Government did not put
forth any further evidence regarding the incident, including
evidence as to how, if at all, the incident could have affected
the trial of the underlying assault charges.
The relationship between anger and consciousness of guilt
The Government has a variety of means to punish and deter
misconduct towards a prosecuting officer, including prosecution
under the Uniform Code of Military Justice (UCMJ), as well as
nonjudicial and administrative measures. When such misconduct
is not the subject of charges in a pending case, the act of
uncharged misconduct may be admissible in a criminal prosecution
under Military Rule of Evidence (M.R.E.) 404(b) when the act
3
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demonstrates a fact of consequence to the case, such as an act
or statement by the accused demonstrating consciousness of guilt
-- but only if the evidence meets the criteria set forth in
United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989). The
Reynolds criteria must be applied with care to ensure that the
evidence is not used to convict the accused by showing “a
propensity to commit the charged or other crimes.” Steven A.
Saltzburg et al., 1 Military Rules of Evidence Manual § 404.02
[10][c], at 4-91 (6th ed. 2006).
The issue before us primarily involves the second prong of
the Reynolds test -- the requirement that the prosecution
demonstrate that the evidence of uncharged misconduct makes a
fact of consequence more or less probable. United States v.
Harrow, 65 M.J. 190, 202 (C.A.A.F. 2007). In the present case,
the prosecuting officer testified as to her belief that
Appellant was angry at both her and the legal office. She
testified that he swerved a car close to her, and she further
testified that she did not believe he was attempting to hit her.
She speculated that he carried out this act “to intimidate [her]
or to make some sort of showing of power or intimidation.” The
Government elicited no specific information as to the actual or
potential impact on the ability of the prosecution to introduce
evidence, exercise discretion, or otherwise take action with
respect to a fact of consequence in the case.
4
United States v. Staton, No. 10-0237/AF
An act of uncharged misconduct motivated by the anger of an
accused towards a prosecuting official does not prove that the
accused committed the charged offenses in a pending trial.
Given the stress of a prosecution in which reputation, career,
family relationships, and extended confinement are at stake, it
would not be unusual for an accused person to harbor negative
feelings towards those viewed as responsible for his or her
predicament, including feelings of anger. A person who believes
he or she is innocent and wrongfully prosecuted may well harbor
deep feelings of anger and resentment. Likewise, a person may
recognize his or her responsibility for the conduct at issue but
may nonetheless feel great anger over what he or she views as
overcharging or a selective prosecution.
To prove that the act of anger makes a fact of consequence
-- consciousness of guilt -- more or less probable under
Reynolds, the Government must demonstrate a connection between
the act of anger and the potential impact of the act on matters
connected to the determination of guilt, such as the
availability of evidence or exercise of prosecutorial
discretion. In the present case, the Government did not
demonstrate a relationship between Appellant’s act of swerving
the vehicle and the availability of evidence, the exercise of
prosecutorial discretion, or any other matter that would
establish the probability of a fact of consequence in the case.
5
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The responsibility for ensuring that such evidence meets
the Reynolds criteria rests in the first instance with the
military judge, not the court-martial panel. In the absence of
a link between the act and the consequences for the prosecution
of the case, the military judge erred by permitting the
prosecution to elicit the testimony about the uncharged
misconduct as evidence of Appellant’s consciousness of guilt.
The evidence also should have been excluded under the third
prong of Reynolds, which balances the probative value of the
evidence against the danger of unfair prejudice. See Harrow, 65
M.J. at 202. Here, the low probative value of the uncharged
misconduct evidence was outweighed by the danger of unfair
prejudice. The Government, in addressing the merits of the
assault charges, specifically contended that the charged
assaults resulted from Appellant’s violent and volatile
personality. The evidence of Appellant’s uncharged misconduct
in the automobile incident unnecessarily raised the risk that
the members might infer that Appellant had a violent and
volatile personality, and that the charged assaults were in
conformity with these personality traits. Under these
circumstances, the risk of prejudice far outweighed any
probative value. To the extent that the military judge
addressed these considerations in his instructions, that factor
would bear on an assessment of whether the erroneous admission
6
United States v. Staton, No. 10-0237/AF
of the evidence constituted prejudicial error, not on the
question of whether the military judge should have excluded the
evidence from any consideration by the members.
For the foregoing reasons, I respectfully disagree with the
majority’s conclusion that the military judge did not abuse his
discretion in admitting the evidence of uncharged misconduct. I
concur in the result, however, in view of the test for prejudice
under Article 59(a), UCMJ, 10 U.S.C. 859(a) (2006). See United
States v. Baumann, 54 M.J. 100, 105 (C.A.A.F. 2000) (holding
that the government must show that the erroneous admission of
evidence under M.R.E. 404(b) did not materially prejudice the
substantial rights of the appellant). The Government had
substantial evidence in support of Appellant’s guilt, including
Appellant’s own confessional statements and the testimony of the
victim and the victim’s mother. Considering the severity of the
injuries to his stepson, Appellant’s parental discipline defense
was fairly weak. Accordingly, I concur in the majority’s
decision to affirm the findings and sentence.
7