UNITED
STATES, Appellee
v.
Douglas L.
SAFERITE, Senior Airman
No.
03-0271
Crim. App.
No.
34378
Argued
Decided
GIERKE,
J., delivered the opinion of the Court, in which CRAWFORD, C.J.,
EFFRON, BAKER,
and ERDMANN, JJ., joined.
Counsel
For Appellant:
Captain
Jennifer K. Martwick (argued); Colonel
Beverly
B. Knott, and Major Terry L. McElyea
(on
brief).
For Appellee: Major Shannon J. Kennedy (argued); Colonel
LeEllen Coacher (on brief); Lieutenant
Colonel
Robert V. Combs and Lieutenant Colonel Lance B. Sigmon.
Military Judge:
Rodger A.
Drew, Jr.
This
opinion is subject to editorial correction before final publication.
Judge
GIERKE delivered the opinion of the Court.
A
general court-martial composed of officer
members convicted Appellant, contrary to his pleas, of attempting to
sell
military property (three specifications), selling military property
(eight
specifications), and larceny of military property (12 specifications),
in
violation of Articles 80, 108, and 121, Uniform Code of Military
Justice, 10
U.S.C. §§ 880, 908, and 921 (2000), respectively. The
adjudged and approved sentence provides
for a dishonorable discharge, confinement for six years, a fine of
$14,565.00
and to be further confined until the fine is paid but not for more than
one
year, and a reduction to the grade of E-1, airman basic.
The Court of Criminal Appeals affirmed the
findings and sentence in an unpublished opinion.
This
Court granted review of the following
issue:
WHETHER THE MILITARY JUDGE ERRED IN
ADMITTING PROSECUTION EXHIBITS 141 AND 142 AS EVIDENCE IN SENTENCING TO
SHOW
THAT APPELLANT’S WIFE MAY HAVE BEEN AN ACCESSORY TO HIS ESCAPE FROM
PRETRIAL
CONFINEMENT.
For the reasons set
out below, we find that the military judge erred in admitting these two
exhibits, but conclude that this error was harmless and affirm.
Factual
Background
The
facts underlying Appellant’s conviction
were summarized as follows by the Court of Criminal Appeals:
In
the summer of 1999, the appellant was assigned to the
From
about July to September 1999, the appellant stole large quantities of
expensive
computer equipment and electronic components from his duty section, and
sold
them over the Internet through a popular auction site.
On the night before he was scheduled to
out-process from the Air Force, he stole processors from the eight
computers
handling the installation’s unclassified e-mail. He
was careful to take only three of the four
processors from each machine, so the system would continue to operate
even though
its capabilities were greatly reduced.
Nonetheless, technicians soon discovered the missing processors,
and the
appellant was apprehended before his separation from active duty. A search of his rented car and his
girlfriend’s home revealed more stolen government property, and
ultimately led
investigators to records of his sales of government property over the
Internet. The total loss to the
The
appellant was placed in pretrial confinement on
During
Appellant’s trial, he escaped from
pretrial confinement.* He was
convicted and sentenced in absentia.
During
the sentencing proceedings, defense
counsel presented a written unsworn
statement from
Appellant’s wife, Ms. Scholzen. In the statement, she gave her opinion of the
Appellant as a caring father and supportive spouse.
She described in detail her relationship with
Appellant including how she met him, how he convinced her to keep their
baby
when she unexpectedly became pregnant, and how and why they got married
even
while Appellant was in pretrial confinement.
She described Appellant’s support for her during a challenging
pregnancy
and his happiness when their baby was born.
Repeatedly she commented on Appellant’s desire to be a good
husband and
father and her need for and dependence on Appellant.
She professed her love for Appellant and
described how much they missed each other.
She ended her statement with a passionate plea for compassion
for
Appellant.
In
rebuttal, trial counsel offered two
items of documentary evidence in an attempt to attack the credibility
of Ms. Scholzen. Trial
counsel asserted that these two documents were evidence of bias by Ms. Scholzen because they “tend to establish that
circumstantially” Ms. Scholzen “was
materially
involved in the escape of the accused from pretrial confinement on
Trial
defense counsel
objected to both of these documents and argued they were not relevant
and were
unduly prejudicial. The military judge
admitted Prosecution Exhibits 141 and 142 over defense objection,
ruling that
the evidence was relevant to show bias, in that it tended to show that
Ms. Scholzen was willing “to engage in
criminal activity in
order to support her husband.” The
military judge weighed the danger of unfair prejudice against the
probative
value and concluded the evidence was not unfairly prejudicial “because
it’s not
[Appellant] we’re talking about here, it’s his wife.”
The military judge ruled that the documents,
with further redaction of extraneous material, were admissible
extrinsic
evidence under Military Rule of Evidence 608(c) [hereinafter M.R.E.].
In
his sentencing instructions, the military
judge cautioned the members that they must “bear in mind that the
accused is to
be sentenced only for the offenses of which he has been found guilty.” He further instructed the members that they
were permitted to consider Appellant’s absence from the court-martial
“in
assessing his military record,” but he cautioned them,
[R]emember
that if he is to be punished for that absence, it will be in a
different forum,
on a future date. The function of this
court is to punish the accused only for the offenses of which he has
been found
guilty by this court.
During
arguments on the sentence, trial
counsel attacked the testimony of Ms. Scholzen. First, he argued that “She’s not entirely
uninvolved with this entire situation.”
He asserted that she was aware of Appellant’s making big money
by
auctioning items on the Internet.
Second, he argued that the evidence suggested that “there was
some
coordination, some communication, some
collusion there
between the two of them about his escape from confinement.” Trial counsel assured the members that the
evidence was not presented to “beat up” Ms. Scholzen,
but “as a form of bias.” He concluded
this portion of his argument by exhorting the members to consider Ms. Scholzen’s willingness to help Appellant escape
from
confinement when they read her statement.
Addressing
the present issue, the Court of
Criminal Appeals held that the military judge did not abuse his
discretion in
admitting Prosecution Exhibits 141 and 142.
The court stated complete agreement with the reasoning of the
military
judge that these documents tend to show bias of Appellant’s wife
because of her
willingness to engage in criminal activity to support Appellant. Saferite,
ACM 34378 at 3-4.
Before
this Court, Appellant asserts that
Prosecution Exhibits 141 and 142 were not proper rebuttal evidence
because they
did not “explain, repel, counteract or disprove” anything in Ms. Scholzen’s letter.
He asserts that the evidence did not demonstrate any “bias,
prejudice or
any motive to misrepresent” on the part of Ms. Scholzen,
because the allegation of involvement in her husband’s escape from
confinement
does not make her feelings about her husband and her perception of his
qualities less true. Appellant also
argues that the evidence was unduly prejudicial because it allowed the
prosecution to refer to uncharged misconduct in argument, i.e., that
Appellant
conspired with his wife to escape and was the type of person who would
involve
his wife in his criminal activities, without a proper cautionary
instruction
from the military judge regarding the limited purpose for which the
evidence
was received.
The
Government argues that the military
judge did not abuse his discretion by admitting the evidence. It argues that a declarant’s
bias is always relevant, that trial counsel limited his use of the
evidence to
focus on bias, and that the military judge cautioned the members that
they
could punish Appellant only for the offenses of which he was found
guilty. The Government argues that the
evidence
rebutted Ms. Scholzen’s characterization
of Appellant
as a devoted “family man” by showing that he was “willing to involve
his wife
in a criminal enterprise” and “willing to ‘orphan’ his offspring by
risking
both of their parents’ freedom.”
Finally, the Government argues that even though the members were
already
aware that Appellant was a deserter, they
sentenced
him to confinement for six years instead of 16 years as recommended by
the
trial counsel, indicating that they were not unduly inflamed by the
evidence at
issue.
Discussion
“The
Military Rules of Evidence are applicable to sentencing . . . thus
providing
procedural safeguards to ensure the reliability of evidence admitted
during
sentencing.”
During
sentencing, as at every other moment of trial testimony, the
credibility of a
witness is an omnipresent issue. Each witness’s credibility determines
the
authority of the testimony. Section VI
of the Military Rules of Evidence is entitled “Witnesses,” but easily
could be
viewed as “Credibility of Witnesses” as the whole section focuses on
technical
evidentiary rules to bolster or to attack the credibility of testimony.
M.R.E.
608 is a key evidentiary rule that
covers several methods to bolster or attack the credibility of a
witness. These methods include opinion and
reputation
evidence as to the character of a witness for truthfulness and
questions
regarding specific instances of conduct that may be relevant to
credibility. Important to the present
case is M.R.E. 608(c), which states: “Evidence of bias. Bias, prejudice, or any motive to
misrepresent may be shown to impeach the witness either by examination
of the
witness or by evidence otherwise adduced.”
Evidence
of bias can be powerful impeachment. Davis v.
Additionally,
we are mindful that evidentiary rules are not applied in a factual
vacuum. The context in which evidence is
offered is
often determinative of its admissibility.
In the present case, as the prosecution offered Prosecution
Exhibits 141
and 142 to rebut Defense Exhibit C, the admissibility of rebuttal
evidence is
at issue. This Court has clearly stated
the legal function of rebuttal evidence:
"It is . . . to explain, repel, counteract or disprove the
evidence
introduced by the opposing party." United
States v. Banks, 36 M.J. 150, 166 (C.M.A. 1992)(quoting United States v. Shaw, 9 C.M.A. 267,
271, 26 C.M.R. 47, 51 (1958)(
Rebuttal
evidence, like all other evidence,
may be excluded pursuant to M.R.E. 403 if its probative value is
substantially
outweighed by the danger of unfair prejudice.
We
review a military judge’s evidentiary rulings for abuse of discretion.
We hold that
the military judge clearly abused
his discretion. While the evidence was
logically relevant to show Ms. Scholzen’s
bias in
favor of Appellant, its probative value was substantially outweighed by
the
danger of unfair prejudice.
The probative
value was minimal. The thrust of Ms. Scholzen’s
statement was to present her personal opinion that Appellant was a good
father
and husband. Her poignant plea professed
her love for Appellant, emotional need for his support, and loneliness
during
his absence. The content and tone of Ms.
Scholzen’s statement convincingly showed
her bias as
the wife of Appellant. It was clear that
her statement presented her view of Appellant through her eyes as his
wife. Her detailed explanation of her
marriage to Appellant while he was in pretrial confinement spoke
volumes about
her commitment to him and clear bias for him.
In this
context, evidence of her possible
complicity in Appellant’s escape added little to establish her bias in
her
statement. At best, it was merely
cumulative on the issue of her bias toward Appellant.
On
the other hand, the danger of unfair prejudice was substantial. Rather than show bias on the part of Ms. Scholzen, the evidence tended merely to allege
uncharged
misconduct by Appellant. If the members
believed the theory advanced by the prosecution, then Appellant was
guilty of
conspiring with his wife and involving her in the criminal conduct of
his
escape. First, we view the factual
evidence of this theory as tenuous at best.
The circumstances of the authorities stopping Ms. Scholzen
off base early in the morning did not establish her involvement in
Appellant’s
escape at his behest. Second,
notwithstanding the factual deficiency to link Ms. Scholzen
to Appellant’s escape, trial counsel focused his argument on the
uncharged
misconduct. Trial counsel did ask the
members to find “a form of bias” from the willingness of Ms. Scholzen to help Appellant escape.
But the focus of his argument was on the
uncharged misconduct of Appellant’s conspiring with his wife to assist
him in
his escape as reflected in trial counsel’s statement, “We suggest to
you that
there was some coordination, some communication, some
collusion there between the two of them about his escape from
confinement.”
Although
we identify this danger of unfair
prejudice, we further hold that the error was harmless under the
particular
facts of this case. Evidence of
Appellant’s escape was already before the members.
Appellant was tried in absentia. The
military judge carefully instructed the
members to sentence Appellant only for the offenses of which he was
convicted. He cautioned the members that
any punishment arising from Appellant’s absence “will be in a different
forum,
on a future date.”
The
record reflects that the members
followed the military judge’s instruction.
The maximum period of confinement was 230 years and the trial
counsel
asked the members to impose confinement for 16 years.
However, the members imposed confinement for
only six years. Thus, we can “say, with
fair assurance, . . . that the judgment was
not
substantially swayed by the error.” Kotteakos v. United States, 328
Decision
The
decision of the United States Air Force
Court of Criminal Appeals is affirmed.
* Appellant was
confined at the military facility in Mannheim