For Appellant: Captain Marge A. Overly (argued); Colonel Jay L. Cohen (on brief); Major Ormond R. Fodrea.

For Appellee: Colonel Jeffery T. Infelise (argued); Lieutenant Colonel Michael J. Breslin and Captain Libby A. Brown.

Military Judges: Donald E. Weir (trial) and Howard Altschwager (DuBay Hearing).
 
 

Cox, Chief Judge:

A general court-martial (referred non-capital) comprised of officer members at Wright-Patterson Air Force Base, Ohio, convicted appellant, contrary to his pleas, of the premeditated murder of his wife, in violation of Article 118(1), Uniform Code of Military Justice, 10 USC § 918(1). He was sentenced to dismissal, confinement for life, and total forfeitures. The convening authority approved the sentence, and the Court of Criminal Appeals affirmed in an unpublished opinion.

We granted review of these issues raised by appellant to defense counsel:

On the morning of Monday, April 15, 1991, at approximately 10:40 a.m., appellant called 911 from his home to report that his wife, Patricia ("Trish"), had committed suicide. Appellant had arrived home for lunch shortly before his call, leaving work approximately 15 minutes earlier than usual. When the first wave of police and emergency officials from the City of Huber Heights and Montgomery County, Ohio, began arriving a few minutes after appellant’s call, they found the deceased on the bathroom floor in a pool of blood. A handgun, which was subsequently determined to have inflicted the fatal wound, was lying on the sink nearby. The first police officer who entered the bathroom and felt Trish’s wrist, testified that "[i]t was cold and clammy at that time and there was no pulse." A medic arriving shortly thereafter confirmed that she was dead.

The officer-in-charge at the scene testified concerning appellant’s appearance as follows:

He also told the police that, when he arrived home for lunch, he found the deceased

Therein, appellant again described the on-going argument he was having with Trish that morning (about whether she would continue college). He indicated that he had left work that morning at about 8:00 a.m. to bring the car seat home. The argument continued at home and "Trish was still very edgy and agitated." According to appellant, he dropped off A (the older child) at her bus stop. then he returned to the house where he picked up L and drove her to the sitter. from the sitter’s he returned directly to work.

Shortly after arriving back at work, appellant called Trish, at about 9:10 a.m. According to him, she was still in bed, and he "said--Go to school and she slammed the phone down on" him. When he called back, she would not answer. Arriving home for lunch, he found her dead.

A co-worker of appellant, testifying subsequently at appellant’s court-martial, corroborated his comings and goings that morning at work, and was cognizant of appellant's making a 3 to 5 minute telephone call to his wife that morning shortly after 9:00 a.m.

In the first tape-recorded statement, appellant also told the officers that he had bought the pistol from an individual and had given him a false name. Appellant never registered it. He further explained that his wife hated guns--she was "anti-gun"--and that he doubted she had ever fired one.

The officers then asked appellant:

Ultimately, the officers decided that another interview of appellant was going to be necessary. Therefore, that same day, April 15, 1991, at about 3:40 p.m., the officers returned to appellant’s residence and asked him if he would return to the station. Appellant agreed. At the station, his rights were reviewed, and he again agreed to talk to the officers on tape and without the presence of an attorney.

In this second recorded interview (both recorded interviews were played for the court members and are transcribed verbatim in the record of trial), appellant reiterated the morning events, including the initial argument, his departure for work and discovery of the car seat, his return home and disposition of the children, his return to work and his phone call home, his early return home for lunch and the discovery of his wife’s body, and his handling of the weapon.

Appellant also amplified his account of his purchase of the weapon 9 months earlier, how he had test fired it a week or so after purchasing it, but he claimed that he had not fired it since. He went on to describe how he hid the gun

Appellant, however, had been lying all along, as shortly became dramatically clear. The police could not know, on April 15, still just a few hours after the discovery of Patricia’s body, that an analysis several days later of the swabs taken of appellant’s and Patricia’s hands would, in the opinion of the forensic chemist, be "consistent with" that appellant had recently fired a weapon but that Patricia had not.

Thus, after asking appellant about the amounts of life insurance in force with respect to Patricia and himself (see infra) and about his post-service plans (appellant was in the process of separating from the service, and he intended to open a business), one of the investigators asked appellant:

Also attending that interview at the Huber Heights Police Department was Special Agent Collins of the Air Force Office of Special Investigations. Collins had investigated appellant’s own, earlier suicide attempt. See n. 1, supra. Shortly after appellant’s melt-down, Collins got appellant to clarify the nature of the dispute:

Not surprisingly, the investigators indicated disbelief that this woman, who so loved her daughters, would abandon them forever without so much as saying goodbye or leaving a note. Indeed, the officers suggested that appellant’s anger at her intending to leave him and take the children might have caused "[t]hings [to] happen," to "get out of hand real quick." When the officers asserted that the facts and circumstances did not seem to support appellant’s account of Trish killing herself, appellant terminated the interview, though without requesting counsel. 3/

But appellant did not stop talking--or changing his story. The next day, April 16, 1991, appellant, who had been voluntarily hospitalized on a suicide watch, sought out a nurse who was seated outside his room, inquiring, "[M]ay I please talk to you?" The nurse testified that she thereupon entered his room to see how he was feeling. He wanted to know, however, if she had heard whether the "powder tests had come back yet," referring to the "powder tests on his hands." When the nurse replied that she had no idea, he continued to ventilate, stating that "he knew that he would have powder on his hands and she’d [Trish] have scant to none on hers." He told the nurse of their fighting and his giving the gun to Trish.

Then, according to the nurse,

No such towel was found at the scene, and appellant had never mentioned removing one. There was also no explanation how Patricia, who so abhorred weapons, would have the knowledge or presence of mind to use a towel to preclude a subsequent positive finding on an atomic absorption test.

That same day, April 16, 1991, appellant was visited in the hospital by Special Agent Collins. After being advised of his rights, waiving them, and agreeing to talk to Collins without presence of counsel, appellant reiterated much of his account of the events as modified up to that point. Regarding the faked phone call, according to Collins:

Appellant was released from the hospital on April 17 and granted a short leave by his vice-commander. At the same time, the vice-commander restricted appellant to the vicinity of Wright-Patterson Air Force Base, as bounded by certain specified interstate highways. Contrary to these orders, however, appellant rented an automobile and drove to Buffalo, New York, near the Canadian border, where he registered in a motel. The car was returned to the rental company in Dayton, Ohio, on April 24.

On that day, appellant was apprehended at the hospital at Wright-Patterson Air Force Base by Special Agent Collins for premeditated murder. Appellant’s own vehicle was found in the hospital parking lot and, in the presence of appellant’s father, it was inventoried. In the glove box was discovered approximately $14,000 in cash. Based upon federal search warrants executed on various banks and other financial institutions and on information provided by appellant’s father, it was determined that the cash was generated by a series of credit card advances and bank withdrawals made by appellant.

Appellant’s father testified and verified the foregoing. He also recounted how he and appellant’s mother were permitted to visit their son in the confinement facility on Sunday, May 5, 1991. Appellant told his parents on that occasion

Given appellant’s astonishing and blatant succession of fabrications, the balance of the Government’s case may be somewhat briefly indicated. L’s baby-sitter described her surprise to find appellant delivering L, something he had not done in at least 4 months. Moreover, L was not expected for at least another 2 hours.

The pathologist who conducted the autopsy concluded that Patricia died as a result of a gunshot wound to the head. He was "certain that it’s homicide." His conclusions appear to be derived to a large degree from the unusual angle of trajectory of the fatal bullet, which he demonstrated in court by touching his right index finger to his right temple, with his elbow back and above his head, and with the finger pointed in a downward direction toward his mouth.

Some 4 months before Patricia’s death, appellant increased her life insurance coverage, as to which he was beneficiary, from $135,000 to $180,000. His own coverage stood at $150,000. Appellant well knew that a finding that Patricia had committed suicide would not bar his recovery of the insurance proceeds. 4/

Needless to say, the prosecution drew a vastly different set of conclusions from the evidence than did appellant. In the Government’s view, appellant was enraged that Patricia intended to leave him and take the children, and they had argued bitterly. He concocted his pretext for returning home with the car seat, and he delivered L to the sitter early to have her out of the way. He then retraced his route home, which was only a few minutes from the sitter’s house in any event. Entering his house with the weapon, which he had retained, he surprised Patricia in the bathroom and murdered her with a single shot. He then placed the weapon on the sink, fully realizing he would have to account for his finger prints on it. Returning quickly to base, he staged the fake phone call to solidify his alibi. The bogus "won’t-go-to-class" argument was an attempt to cover the true motive.

All of the evidence heretofore indicated was before the factfinder, and its admissibility stands unchallenged before this court. 5/ By comparison, the two issues raised here by appellant scarcely amount to a blip on the evidentiary radar screen.

As he did at trial, appellant objects to the testimony of Dr. William H. Grant. At the outset, several addenda need to be made to the issue as raised before us. One: Dr. Grant is a psychiatrist, not a psychologist--or at least he has consistently so represented himself over the years, and no contrary evidence appears. Two: Dr. Grant performed what he termed a "retrospective, after-the-fact assessment of an individual’s mental state at the time of death." While some people refer to this by the pop term "psychological autopsy," that was not a term that had meaning to Dr. Grant. Three: At trial, Dr. Grant never "testif[ied] . . . that . . . it was unlikely the deceased committed suicide." These matters apart, we conclude that the granted issue is without merit.

Dr. Grant is a board-certified forensic psychiatrist who, at the time of trial, had retired from the Air Force after 22 years of service and was in private practice in Alabama. While still on active duty, he was tasked with assessing the state of mind of the deceased at the time of her death, insofar as possible. Since the moment of appellant’s 911 call, that matter was very much "in issue."

Prior to testifying at the Article 32, UCMJ, 10 USC § 832, investigation, Dr. Grant had reviewed approximately 41 documents relating to the case, including police reports and interviews, autopsy reports, medical records, and numerous statements from family members, friends, and acquaintances of the deceased, including relatives of appellant. In the course of his study of Patricia St. Jean, Dr. Grant prepared an impressive report, cataloging the evidence and data, the methodology of his evaluation, and the bases of his conclusions. Ultimately, Dr. Grant was unable to detect any indication that Patricia St. Jean was suicidal at the time of her death, and, indeed, he testified at the Article 32 investigation that he personally concluded she had not committed suicide.

At the court-martial, the defense moved to suppress Dr. Grant’s testimony on a wide variety of grounds, arguing that it would amount to an opinion on the ultimate issue in the case (i.e., that appellant murdered Patricia); that it would amount to a comment on appellant’s credibility; that Dr. Grant’s report noted appellant’s history of prevarication and that his evaluation was therefore subjective (i.e., non-scientific) and, moreover, relied on hearsay evidence; that he had set himself up as a "one-man lie detector"; that what Dr. Grant had set out to evaluate was "such subjective and soft science if it is a science at all" that it amounted to "nothing more than a flip of the coin" and was not helpful information for the factfinder [Mil.R.Evid. 702, Manual for Courts-Martial, United States (1995 ed.)]; and its prejudicial impact outweighed any probative value (Mil.R.Evid. 403).

No evidence, however, opinion or otherwise, was presented by the defense to attack the scientific basis of Dr. Grant’s analysis or opinions. For evidence, the Government relied on the transcript of Dr. Grant’s Article 32 testimony, on his report, and on an excerpt from a learned treatise regarding criteria of suicide risk.

After considering the arguments and briefs of counsel and the documentation submitted, the military judge allowed the testimony of Dr. Grant under Mil.R.Evid. 401-03 and 702. However, the military judge greatly narrowed the permissible scope of Dr. Grant’s testimony in these respects: First, he would

Second, the military judge would not permit Dr. Grant to comment on the credibility or veracity of appellant.

Third, the military judge would not permit trial counsel to ask Dr. Grant about what he saw in the police reports or for trial counsel to "start dragging in evidence before the court that would be inadmissible."

Fourth, the military judge specifically warned counsel "in their adversarial zeal" not to try to expand the testimony beyond the rigid limitations announced.

Within these limitations, however, the military judge found

Asked by trial counsel about "generally accepted indicators, characteristics, warning signals for individuals with a high risk of committing suicide," Dr. Grant described "two ways to look at it." According to Dr. Grant:

Beyond that, Dr. Grant noted :

The Court of Criminal Appeals held that the military judge did not abuse his discretion in receiving Dr. Grant’s limited testimony. Unpub. op. at 3. We agree.

Expert testimony is admissible if it is relevant (Mil.R.Evid 401-02), if its probative value outweighs its prejudicial value (Mil.R.Evid. 403), and if the testimony will assist the trier of fact (Mil.R.Evid. 702). In United States v. Houser, 36 MJ 392, 397-98 (CMA 1993), Judge Crawford, speaking for the Court, distilled six factors out of these rules: (A) the qualifications of the expert, (B) the subject matter of the expert testimony, (C) the basis for the expert testimony, (D) the legal relevance of the evidence, (E) the reliability of the evidence, and (F) whether the 'probative value' outweighed the other considerations. When a military judge has considered these factors, our standard of review is abuse of discretion. 36 MJ at 397 (citations omitted); United State v. Gipson, 24 MJ 246, 251 (CMA 1987). Like the court of Criminal Appeals, we detect no abuse of discretion on the part of the military judge.

We note that that there is enormous difference between asserting that persons who bear certain characteristics are likely to have committed crime, see United States v. Banks, 36 MJ 150 (CMA 1992), and asserting that persons who manifest particular characteristics are likely to have a certain mental state or condition. see United States v. Stark, 30 MJ 328 (CMA 1990); see generally American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994).

In our review, it appears that Dr. Grant very frankly conceded the limitations of his examination, i.e., that the deceased could not be interviewed or given psychological tests, and that he was forced to rely on the statements, observations, and reports of others. Such vicarious fact-gathering is expressly permissible and normal in the medical, psychiatric, psychological fields. Mil.R.Evid. 703; see S. Saltzburg, S. Schinasi, D. Schlueter, Military Rules of Evidence Manual, 738-39 (3d ed. 1991); Imwinkelried, The "Bases" of Expert Testimony: The Syllogistic Structure of Scientific Testimony, 67 N.C. Law Rev. 1 (1988). In addition, Dr. Grant was extremely precise in describing the limitations of his findings: that he could not detect evidence of the deceased’s depression or impulsivity at or near the time of her death. Trial defense counsel, for his part, did an excellent job in cross-examining Dr. Grant and clarifying the limitations of his testimony.

Accordingly, Granted Issue I is without merit.

The final issue, although hotly contested at trial, is, in our opinion, of minimal appellate significance. Physical examination of the bathroom where Patricia died revealed gunpowder and lead residue on the lower portion of the bathroom door. Mr. Haemmerele, a firearms and tool mark expert for the Huber Heights Police Department undertook to ascertain how those traces got there. He theorized that it bounced there from the victim’s head, and he conducted a series of tests by firing bullets into Styrofoam mannequin heads covered with a latex coating and observing whether and how the residue bounced onto adjacent cardboard. His experiments led him to conclude that the victim's head was greater than 3 but less than 12 inches from the door and approximately 30 inches above the floor when the fatal round was discharged.

Defense counsel moved to suppress Haemmerle's prospective testimony on every imaginable ground, and the military judge conducted a hearing on novel technology pursuant to Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786 (1993). See United States v. Nimmer, 43 MJ 252 (1995); United States v. Youngberg, 43 MJ 379 (1995); United States v. Gipson, supra.

Without undertaking to characterize all of the evidence considered by the military judge, we note that he found Haemmerle to be

The military judge also permitted the testimony, for the defense, of Professor Herbert L. MacDonell, a Professor of Criminalistics at Corning Community College, part of the State University of New York. Professor MacDonell was also Director of the Laboratory of Forensic Science, an independent consulting laboratory available to both the prosecution, defense and civil litigants as well.

Professor MacDonell disagreed almost completely with the assumptions, methods, and conclusions of Mr. Haemmerle. As summarized by the Court of Criminal Appeals:

Accordingly, the Court of Criminal Appeals concluded that, even assuming arguendo it was error to receive Mr. Haemmerle’s testimony, the Court was satisfied, based on Professor MacDonnell’s testimony, that appellant was not prejudiced. In the Court’s view,

This alternate conclusion by the Court of Criminal Appeals does not necessarily condemn the military judge’s decision to receive Mr. Haemmerle’s testimony. The military judge’s role as evidentiary gatekeeper does not require him to admit only evidence that he personally finds correct and persuasive and to exclude that which he finds incorrect or unpersuasive. Rather, the judge’s role is to screen all evidence for minimum standards of admissibility and to let the factfinder determine which evidence which is more persuasive. That appears to have occurred here.

Our bottom line is the dictates of Article 59(a), UCMJ, 10 USC § 859(a), which limits our ability to hold a finding or sentence incorrect as a matter of law "unless the error materially prejudices the substantial rights of the accused." We do not doubt, as a matter of general relevance to enable the factfinder to better understand the res gestae of the situation, that it was appropriate for the military judge to allow the parties to attempt to construct the location of the deceased at the time the fatal shot was fired. Indeed in some cases, such evidence may well be critical. But in the instant case, it did not matter whether the gunpowder residue bounced to the door, was brushed on the door as the deceased fell, or was deposited there by direct fire. What mattered was whether it was appellant who shot Patricia or whether she did it herself. It made no difference whether she was 6 inches or 6 feet from the door when that occurred, or 6 feet, or whether she was standing, seated, or kneeling. How the gunpowder residue got deposited on the door did not help to determine who fired the weapon. Thus no prejudice could possibly have accrued to appellant by Mr. Haemmerle’s testimony regarding the bouncing properties of gunpowder residue.

Accordingly, Granted Issue II is without merit.

The decision of the United States Air Force Court of Criminal Appeals is affirmed.

Judges SULLIVAN, CRAWFORD, GIERKE, and WILKINS 6/ concur.

FOOTNOTES:

1/ Appellant had apparently attempted to commit suicide by carbon monoxide poisoning in September 1990. He was not able to bring himself to try to kill himself with the pistol.

2/ Apparently, on at least one occasion, when appellant condemned Patricia for wanting to leave him, she reminded him how he had tried to evade his problems by attempting suicide.

3/ During the second tape-recorded interview, appellant also described with some particularity the location on Wright-Patterson Air Force Base where he allegedly fired the weapon that morning. A prompt search that day (by eight agents and three ordnance officials using metal detectors) of the stretch of road appellant had indicated revealed no spent cartridges. A subsequent search of appellant’s car was similarly unproductive.

4/ Special Agent Collins, having investigated appellant’s own prior suicide attempt, produced the suicide note appellant left for Patricia at that time. The note featured a specific explanation that the family policy did not bar recovery for a suicide unless the insurance company could prove that suicide was intended at the time of application for the policy. For Patricia’s benefit, appellant highlighted, in the policy, the specific language in question.

5/ As legal sufficiency of the evidence is not before us, we make no attempt to summarize all of the evidence for the parties. That issue was litigated and resolved against appellant at the much higher factual threshold in the Court of Criminal Appeals. We are cognizant, of course, that the defense in the instant case mounted an extensive effort, based largely on the opinion of a variety of experts, to suggest that the physical evidence was not inconsistent with suicide.

6/ Judge William W. Wilkins, Jr., of the United States Court of Appeals for the Fourth Circuit, sitting by designation pursuant to Article 142(f), Uniform Code of Military Justice, 10 USC § 942(f).

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