Michael G. PELKEY, Sergeant First Class
United States Army, Appellant
Crim. App. No. 9400692
United States Court of Appeals for the Armed Forces
Argued November 6, 1996
Decided March 19, 1997
For Appellant: David R. Dowell, Esq. (argued).
For Appellee: Captain Robert T. Resnick (argued); Colonel John M. Smith, Lieutenant Colonel Eva M. Novak, Major Anthony P. Nicastro, and Captain Nancy A. Nollmann (on brief).
Military Judge: Howard C. Eggers
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
During March and April of 1994, appellant was tried by a general court-martial composed of officer and enlisted members at Fort Carson, Colorado. He pleaded guilty to the involuntary manslaughter of his wife but, after a contested trial, was found guilty of her intentional murder in violation of Article 118(2), Uniform Code of Military Justice, 10 USC § 918(2). Pursuant to his pleas, appellant was also found guilty of impeding an investigation, abusing a corpse, and adultery, in violation of Article 134, UCMJ, 10 USC § 934. He was sentenced to a dishonorable discharge, confinement for life, and reduction to Private E-1. The convening authority approved the sentence on September 15, 1994, and the Court of Criminal Appeals affirmed in an unpublished, summary opinion dated September 21, 1995.
On May 9, 1996, this Court granted review of the following issue:
Appellant was charged with the premeditated murder of his wife, Diane L. Pelkey, in violation of Article 118(1). He earlier had pleaded guilty to the lesser-included offense of involuntary manslaughter in violation of Article 119(b)(2), UCMJ, 10 USC § 919(b)(2). In accordance with that plea, he admitted that his wife was dead, that her death resulted from his committing an assault and battery upon her, and that his assault upon her was unlawful. Appellant also admitted that he unintentionally choked his wife to death while awkwardly struggling with her in his car in a remote area of the woods. The Government, nevertheless, proceeded to try him for the premeditated murder or the intentional murder of his wife. The members found him not guilty of premeditated murder but guilty of intentional murder (unpremeditated) in violation of Article 118(2).
Prior to trial, defense counsel moved for the military judge to admit certain evidence showing that appellant had saved his wife’s life after her suicide attempt in July of 1993, 3 months before her alleged murder. The record states:
MJ: Okay, so the relevance is 4 months prior, the accused had essentially saved her life.
ADC: Yes, sir.
ADC: Well, it’s in July, sir, so 3 months, sir.
MJ: Well, okay, 3 months; I’m sorry. Prosecution, what’s your position?
TC: Your Honor, our position is it’s simply not relevant under Rule 401. What happened 3 months ago is not relevant to whether or not on the night of the 8th of October Sergeant Pelkey formed the specific intent to kill his wife.
MJ: I gather from what I have heard
so far in our pretrial sessions--and I mean those on the record--that
the government’s case essentially is going to be one of building a motive
or-–well, circumstantially, to establish premeditation by a long-term series
of events. Am I-—
ATC: That’s correct, sir.
Later on, the military judge made a further ruling on the defense request, as follows:
MJ: Well, you’re going to infer from
it that it was because he loved her and wanted her to live; right? That’s
what you’re going to infer.
DC: Sir, we’re going to--as you said prior when we litigated this issue before, we’re going to use it to show intent, that it negated his intent, any intent of (sic) premeditation.
DC: So, Your Honor, just to clarify, you’re excluding that evidence?
MJ: Yes, I am.
DC: So, the government, in their closing, will not be able to refer to that, also.
MJ: Absolutely not.
DC: All right, sir. I don’t believe we have anything further.
Our next step is to determine the purpose for which the defense offered this evidence at trial. See Mil.R.Evid. 401. Although appellant admitted that he killed his wife, he denied that he did so with premeditation or a specific intent to kill or seriously injure her. See Art. 118; cf. Art. 119. Appellate defense counsel generally asserts that the above-noted evidence was offered to show that appellant did not premeditate or specifically intend to kill his wife 3 months later on October 8, 1993. He particularly argues that such conduct circumstantially shows appellant’s "deeply held religious principles" and "his immediate concern for his wife." He also contends that from these character traits it can further be inferred that appellant "is not the type of person to commit murder." Appellate defense counsel cites the decision of this Court in United States v. Brown, 41 MJ 1 (CMA 1994), as authority for his argument that the denial of this type of defense evidence was constitutional and evidentiary error requiring reversal of appellant’s conviction.
Our initial response to this argument is that an important distinction exists between appellant’s case and United States v. Brown, supra. In Brown, the defense sought to introduce testimony from the accused’s wife and battalion chaplain that the "use of drugs would be contrary to [the accused’s] strongly held religious belief." Id. at 2. This evidence was offered as character evidence to show that the accused did not knowingly use drugs, i.e., that he acted in conformity with this character trait on a particular occasion. Moreover, this character evidence was in the form of reputation and opinion testimony (see Mil.R.Evid. 405(a)) and was found to be admissible on behalf of the accused under Mil.R.Evid. 404(a)(1)(good character trait evidence admissible on behalf of accused where character trait pertinent to charged offense). See generally United States v. Vandelinder, 20 MJ 41 (CMA 1985); United States v. Piatt, 17 MJ 442 (CMA 1984).
In appellant’s case, the evidence that he saved his wife’s life was not formally offered as good character evidence tending to show he did not intentionally kill his wife on October 8, 1993. See Mil.R.Evid. 404(a). Moreover, this specific good conduct evidence certainly was not reputation or opinion evidence within the meaning of Mil.R.Evid. 405(a) (reputation and opinion testimony admissible to show character). Cf. Mil.R.Evid. 405(b) (specific instances of person’s conduct may be admissible to show character where character is essential element of an offense or defense). Accordingly, to the extent that appellant’s argument relies on United States v. Brown, supra, we do not consider it persuasive.
Nevertheless, appellant’s claim that he was improperly denied the opportunity to present evidence can be assessed in light of the reason proffered for its admission at trial. The record shows that trial defense counsel wanted to introduce the above-noted evidence for a reason other than proving appellant’s character, i.e., to undermine the prosecution’s circumstantial case of criminal intent. See United States v. Banks, 36 MJ 150, 166 (CMA 1992); see generallyUnited States v. Mann, 26 MJ 1, 4 (CMA 1988) (evidence of acts admissible to show state of mind).
Mil.R.Evid. 404(b) states:
Turning to this question, we note that in appellant’s case, the prosecution was required to show that he killed his wife with premeditation or at least with a specific intent to kill or commit great bodily harm. Art. 118(1) and (2). It attempted to do so by proving a course of conduct engaged in by appellant prior to his wife’s death that circumstantially proved his deteriorating marriage and growing dislike for his wife. See United States v. Elmore, 33 MJ 387, 389 (CMA 1991); see generally 2 Wigmore, Evidence § 242 at 44 (Chadbourn rev. 1979). The prosecution planned to argue to the members that appellant had this same hostile state of mind towards his wife when he killed her and, thus, that it could be inferred he premeditated or specifically intended to kill her. SeeUnited States v. Cox, 18 MJ 72 (CMA 1984); United States v. Colon-Angueira, 16 MJ 20, 25 (CMA 1983).
The stated purpose of the defense evidence concerning appellant’s life-saving effort was to undermine the factual basis supporting the inference that appellant had a hostile state of mind toward his wife prior to her death. See Mil.R.Evid. 404(b); see also United States v. Walker, supra. There can be no doubt that appellant had the right to counter the prosecution’s proof of the intent element of this offense. United States v. Banks, 36 MJ at 166; see RCM 913(c)(1)(B), Manual, supra. Moreover, we agree with the military judge’s initial ruling that this life-saving evidence was relevant to show a state of mind on the part of appellant inconsistent with a specific intent to kill his wife. See generally United States v. Mann, supra; cf. United States v. Hill, 40 F.3d 164, 168-69 (7th Cir. 1994). Finally, in view of the continuous nature of the conduct the Government relied on to prove premeditation and intent, conduct which covered some 3-4 months before the victim’s death, we are concerned with the military judge’s later suggestion that appellant’s life-saving effort was too remote in time to be relevant. See United States v. Tsinnijinnie, 91 F.3d 1285, 1289 (9th Cir. 1996)(conduct occurring 2 years from when charges brought not too remote); United States v. Baker, 82 F.3d 273, 276 (8th Cir. 1996)(a decade not too remote if relevance great); cf. United States v. Hill, supra at 169 (5 months after crime too remote).
Nevertheless, the military judge did not actually exclude the evidence of appellant’s life-saving effort on the basis of relevance or remoteness. To the contrary, he tentatively or preliminarily ruled that this defense evidence might confuse the members or distract them from the real issue in this case, i.e., appellant’s intent on October 8, 1993. See Mil.R.Evid 403. He had earlier been informed that the prosecution had evidence that appellant goaded his wife into attempting suicide and then saved her life only because he felt guilty about it. Still, the judge left open the possibility that this evidence might be admitted at appellant’s court-martial. The judge further ruled that the prosecution would be allowed to introduce its evidence that appellant had another motive or intent in saving his wife’s life in July of 1993. See generally Mil.R.Evid. 104 (military judge’s power to determine admissibility of evidence at court-martial).
In this context, the precise evidentiary question before us is whether the military judge erred in advising the defense that he would allow the later admission of prosecution evidence rebutting the defense evidence. See United States v. Manos, 848 F.2d at 1430. Clearly, the prosecution had the right under military rules of procedure to introduce relevant rebuttal evidence. See RCM 913(c)1(C). Also, the record establishes the unquestionable relevance of the proffered prosecution evidence to show appellant’s intent or state of mind when he earlier saved his wife’s life. Mil.R.Evid. 401; see United States v. Banks, supra; cf. United States v. Bins, 43 MJ 79, 85-86 (1995). In addition, the record shows that defense counsel’s initial arguments for the exclusion of this government rebuttal evidence under Mil.R.Evid. 401 and 403 were not substantial. He argued only that the prosecution evidence did not rationally show appellant’s guilty state of mind or that it included evidence of physical abuse previously excluded by the judge.
More particularly, the proffered prosecution rebuttal evidence showed appellant’s active role in causing his wife to attempt to commit suicide in July of 1993. Such evidence tended to disprove the defense’s contention that appellant’s motivation for his life-saving act was good will towards his wife. See generally 1A Wigmore, Evidence § 58.2 at 1228 (Tillers rev. 1983); Mil.R.Evid. 104. It logically suggested that this act was actually self-motivated, i.e., intended to protect appellant or assuage his guilty conscience. If the defense chose to make appellant’s life- saving effort an issue in this case, the prosecution was entitled to introduce rationally related evidence necessary to present an accurate or complete picture of this incident to the members. See United States v. Frazier, 33 MJ 260, 263 (CMA 1991).
Finally, turning to appellant’s constitutional argument, we note that he has not attacked the constitutionality of Mil.R.Evid. 403 or the discretion which it gives a military judge to ensure a fair trial. See United States v. Garcia, 44 MJ at 31; cf. United States v. True, 41 MJ 424, 427 (1995); United States v. Stark, 24 MJ 381, 385 (CMA 1987). Even if he had, we hold that the Constitution does not provide him a unilateral right to present defense evidence at his court-martial without also allowing the prosecution to present legally admissible evidence rebutting it. See generally Michigan v. Lucas, 500 U.S. 145 (1991); Taylor v. Illinois, 484 U.S. 400 (1988). Moreover, it was appellant’s decision to not further challenge the evidentiary conditions placed upon him by the military judge, and to not introduce his evidence while objecting to those conditions. See United States v. Ruth, supra; see also Luce v. United States, 469 U.S. 38 (1984). Lastly, the military judge also excluded substantially unfavorable prosecution evidence concerning the life-saving incident, and admitted other defense evidence which the defense used to challenge the Government’s case on criminal intent, i.e., evidence that the victim was pregnant with appellant’s child. In these circumstances, we perceive no substantial infringement of appellant’s right to present his defense or other constitutional unfairness in the trial judge’s rulings. See United States v. Garcia, supra at 31-32 (in context of entire case, excluded evidence did not have great value).
The decision of the United States Army Court of Criminal Appeals is affirmed.
Chief Judge COX and Judges CRAWFORD, GIERKE, and EFFRON concur.