Carlos O. PALMER, Specialist
U.S. Army, Appellant
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.
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
Judge GIERKE delivered the opinion of the Court.
This Court granted review of the following issue:
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, 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:
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.
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.
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:
Mil. R. Evid. 803(3), relied on by the defense at trial, provides that a statement is not hearsay if it is--
United States v. Hudson, 970 F.2d 948, 957 (1st Cir. 1992), cited by appellant, set out the general rule: If evidence is excluded at trial because it is inadmissible for the purpose articulated by its proponent, the proponent cannot challenge the ruling on appeal on the ground that the evidence could have been admitted for another purpose. A purpose not identified at trial does not provide a basis for reversal on appeal.
We review a military judge’s ruling excluding evidence for abuse of discretion. United States v. Sullivan, 42 MJ 360, 363 (1995). The proponent of evidence has the burden of showing that it is admissible. United States v. Shover, 45 MJ 119, 122 (1996). Because of defense counsel’s vague and misdirected proffer, we hold that the military judge did not abuse his discretion by sustaining the Government’s objection to the evidence. Means, 24 MJ at 163.
Defense counsel offered the evidence under Mil. R. Evid. 803(3) as evidence of PFC Boggs’ state of mind. He did not sufficiently link Boggs’ state of mind to the credibility of his testimony. He made no effort to reconcile his theory of admissibility with the limitation in Mil. R. Evid. 803(3) that makes it inapplicable to "a statement of memory or belief to prove the fact remembered or believed."
Unlike the situation in Hudson, supra, defense counsel never asserted that SPC Sauls’ testimony was admissible to impeach PFC 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.
The decision of the United States Army Court of Criminal Appeals is affirmed.
*All Manual provisions are identical to the ones in effect at the time of appellant’s court-martial.