United States v. Cousins

Opinion of the Court GIERKE, Judge: A general court-martial composed of officer members convicted appellant, contrary to his pleas, of one specification of using cocaine, in violation of Article 112a, Uniform Code of Military Justice, 10 USC § 912a. The approved sentence provides for a bad-conduct discharge, confinement for 1 year, total forfeitures, and reduction to airman basic. The Court of Military Review affirmed the findings but approved only so much of the sentence as provides — 71 — for a bad-conduct discharge, confinement and total forfeitures for 8 months, and reduction to airman basic, in an unpublished opinion dated June 17, 1991. We granted review of the following issue: WHETHER THE MILITARY JUDGE ERRED TO THE PREJUDICE OF APPELLANT BY INSTRUCTING THE MEMBERS THAT THEY COULD CONSIDER EVIDENCE OF UNCHARGED MISCONDUCT FOR “BACKGROUND INFORMATION” DURING DELIBERATIONS ON FINDINGS, AND WHERE HE FAILED TO GIVE THE MEMBERS AN INSTRUCTION LIMITING THE USE OF THE UNCHARGED MISCONDUCT FOR SENTENCING. Appellant was charged with using cocaine between July 28 and 31, 1989, based on a positive urinalysis. He contends that the military judge erred by permitting a government witness, Airman Mark Vith, to testify that appellant used methamphetamines nine to eleven times prior to the offense charged. We hold that the military judge committed plain error, and we reverse. After entering pleas of not guilty, but before either side introduced any evidence, the defense made a general motion in limine, stating “that at some point the Government may try to render some uncharged misconduct against Airman Cousins.” Trial counsel responded that he “would only bring in areas of uncharged misconduct if the door was opened by the accused testifying himself.” The military judge deferred ruling on the motion in limine but cautioned defense counsel that, “if you open any doors, what would otherwise be inadmissible could very well become admissible.” The military judge concluded the discussion by inviting defense counsel to “[f]eel free to renew the motion later on.” The court-martial then recessed. When it reconvened approximately 2 weeks later with a new military judge and new trial counsel, the new military, judge asked if “either side desire[d] that [he] rule on the admissibility of any evidence,” and he received a negative response from both counsel. He then asked the defense if they had any motions and received a negative response. After the prosecution presented the urinalysis evidence, including the testimony of a toxicologist, Dr. Wade, the court-martial recessed again. During the recess, trial defense counsel learned that Airman Mark Vith would testify for the prosecution. Airman Vith’s expected testimony apparently caused concern because, when the trial resumed, trial defense counsel requested a bench trial on the ground that the defense was unaware that Airman Vith would testify for the prosecution when they elected trial by an all-officer panel. The military judge denied the request as untimely. The trial resumed and Dr. Wade was recalled for cross-examination. He testified that cocaine is “very soluble in alcohol” and that a person whose alcoholic drink was spiked with cocaine would “probably not” notice it by looking at the drink; but the person would experience some effects from the cocaine, i.e., “light-headedness, ... numbness of the mouth and tongue,” and faintness. Airman Mark Vith testified under a grant of immunity. He was pending trial for use of marijuana and had participated in an OSI1—controlled purchase of marijuana and methamphetamine from Sherry Sigmon.2 He testified that on the afternoon of July 29, he and Airman Wilson went to Sherry Sigmon’s house. Appellant was already there with Ms. Sigmon. Airman Vith testified that he visited Ms. Sigmon “whenever we wanted any narcotics.” Asked what kinds of substances Ms. Sigmon provided, Airman Vith answered, “Basically marijuana. You could get meth. You could get acid [lysergic acid diethyla — 72 — mide (LSD)]. And I guess you could get coke.” Airman Vith testified that, after some small talk about appellant’s hand injury and “the dorm shakedown” that had occurred earlier that day, he, Airman Wilson, and Ms. Sigmon went “to the house where she usually went,” and she purchased marijuana. When she returned with the marijuana, she announced that “she got coke and meth for free; a quarter gram.” As Vith and Wilson were “rolling a joint,” Ms. Sigmon “started cutting a line which she then gave to” appellant. Trial counsel pursued this subject by questioning as follows: Q. A line of what? A. We don’t know. Q. What did it look like? A. Like a line. It looked like a mountain range; it was so big. I don’t know. I couldn’t tell what it was. All I know is— Q. What did you think it was? A. I thought it was meth. Q. Why did you think it was methamphetamine? A. Because that is all I ever seen him use. Q. You say that is all you’ve ever seen him use? A. Yes. Q. You’ve seen him use it on prior occasions? A. Yes, I have. Q. How many times? A. I would say about nine to eleven times. Q. When you are talking about observing him, who are you talking about? A. What? Q. When you say you’ve observed him nine to eleven times— A. I'm talking about Senior Airman Cousins. The defense theory of the case was that appellant did not use any drugs at Ms. Sigmon’s house but that he later visited a friend named Elizabeth Gevedon, who gave him some liquor laced with cocaine to relieve the pain in his severely injured hand. Appellant did not testify but relied on the testimony of Ms. Gevedon to present his defense. She testified that she did not tell appellant about the cocaine because she knew that he was in the Air Force and was not allowed to use drugs. After appellant told Ms. Gevedon that he had tested positive on the urinalysis, she told him that she had put cocaine in his drink. Ms. Gevedon testified that appellant “was upset, very upset. He didn’t understand why I would do such a thing.” Ms. Sigmon, called by the prosecution in rebuttal, testified that appellant came to her house on the morning of July 29. He left during the afternoon, because he objected to the presence of Airmen Vith and Wilson and the fact that they were using marijuana. She admitted obtaining marijuana for Vith and Wilson but denied receiving cocaine or methamphetamines. She denied giving appellant any drugs. Trial counsel recalled Dr. Wade in rebuttal and, after eliciting a description of the effects of cocaine, asked him: Sir, if a person is a methamphetamine abuser primarily, let’s just say a person really likes methamphetamine, based on your knowledge of drug abuse and how drug abusers abuse drugs, is it fair to say that they would never use cocaine? Dr. Wade replied: Oh no. Methamphetamine acts much the same [as] cocaine does____ In fact, methamphetamine is called the “poor man’s cocaine.” Trial counsel’s argument on findings began with a review of the urinalysis evidence. He then shifted his focus to appellant: What do you know about this man? Should you believe, as those urinalysis tests suggest and prove, that he used cocaine? And he used it knowingly, consciously and wrongfully too by the way. But should you believe that he ingested the substance cocaine? Should you rely on those urinalysis test results? Sure you should. Because now you know more about Airman Cousins. — 73 — Moving to the prosecution witnesses, trial counsel commented on Airman Vith’s testimony: Now members, this accused may very well have been using cocaine under the nose, right in front of Airman Vith and Airman Wilson, but we don’t know that. He could have thought that what he had was methamphetamine because as you recall, Airman Vith said, “Well gee, I just assumed that was methamphetamine because he has done methamphetamine in front of me at least ten or eleven times before.” Now that is what Airman Vith thought. But what Airman Vith thought doesn’t matter; that is just background information. How you interpret that evidence is what matters. You are the court. You are speaking for the Air Force in this regard. Turning to the expert testimony of Dr. Wade, trial counsel argued: Members of the court, use your common sense, knowledge of the ways of the world. Mr. Wade told you that people who use methamphetamine are just a[s] likely to use cocaine because it has the same effects. Right? Didn’t he say that methamphetamine was the “poor man’s cocaine”? Right? It gives you the same high.... Trial counsel then turned his attention to the credibility of Elizabeth Gevedon: She is testifying under a grant of immunity because, after all, she provided cocaine to this accused that day, or so she claims____ How convenient. How convenient it all is that she would just have this urge to do this for Airman Cousins two days before his urinalysis. How convenient. Knowledge of human nature and the ways of the world. This woman doesn’t have a thing to lose____ Nothing is going to happen to her. She is not in the military. • She has nothing to lose but she sure has a lot to do for her friend and tell you just how she slipped some cocaine into his drink. Trial counsel then discussed the scientific evidence, arguing that appellant could not have ingested the cocaine without feeling its effects and that, if he ingested the quantity described by Elizabeth Gevedon, his urinalysis would have reflected a higher concentration of the cocaine metabolite. In rebuttal argument trial counsel attacked the credibility of his own witness, Sherry Sigmon, arguing: It is clear that she wants to help the accused. She was involved with him; she used to date him very seriously. She should have no credibility. Trial counsel concluded his rebuttal argument by urging the members, “[W]hen you apply what you know about the world—you should convict him because he is guilty.” The military judge instructed the court members that, “if an accused believes he is using methamphetamines when, in fact, he is using cocaine, he could still be convicted of wrongful use of cocaine because he had knowledge adequate to establish wrongfulness.” He further instructed, “If the accused was in fact ignorant of the fact that there was cocaine in his drink, then he cannot be found guilty of the offense of wrongful use of cocaine.” Regarding Airman Vith’s testimony, he instructed the court members as follows: Evidence that the accused may have used methamphetamine before 29 July 1989 was presented to you as background information. 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 criminal tendencies and that he, therefore, committed the offense charged. Neither party objected to the instructions as given, nor did they request additional instructions. The testimony at issue is Airman Vith’s testimony that he had seen appellant use methamphetamines nine to eleven times previously. In order to resolve the granted issue, we must answer three questions: (1) Was Airman Vith’s testimony admissible? (2) If not admissible, was the error in its admission cured by the military judge’s instructions? and (3) If not cured by the instructions, was admission of Airman — 74 — Vith’s testimony without defense objection “plain error”? Admissibility of the evidence of uncharged misconduct is determined by a three-pronged test: (1) “Does the evidence reasonably support a finding by the court members that appellant committed prior crimes, wrongs, or acts?” (2) Does the evidence make a “fact ... of consequence ... more ... or less probable”? and (3) Is the “probative value” of the evidence “substantially outweighed by the danger of unfair prejudice”? If the evidence fails any of the three tests, it is inadmissible. Mil.R.Evid. 401-403, Manual for Courts-Martial, United States, 1984; United States v. Reynolds, 29 MJ 105, 109 (CMA 1989). Starting with the first test, we are satisfied that Airman Vith’s testimony would “reasonably support a finding” that appellant had previously used drugs. Airman Vith testified that he knew Ms. Sigmon could supply marijuana, LSD, methamphetamine, and maybe cocaine. He had made an OSI-controlled purchase of methamphetamine from Ms. Sigmon. Based on this testimony and Airman Vith’s obvious and frequent association with known drug users, the court members could reasonably infer that he was able to recognize methamphetamine and that his testimony that appellant previously had used the methamphetamine in his presence was believable. We hold that Airman Vith’s testimony passes the first test. Turning to the second test, Airman Vith’s testimony that appellant used methamphetamines 9-11 times previously did not make it more or less probable that Ms. Sigmon provided appellant with cocaine at her house on July 29. Accordingly, we hold that the evidence of appellant’s prior drug use was irrelevant; therefore, it fails the second test. Mil.R.Evid. 401 and 402. Since Airman’s Vith’s testimony regarding appellant’s prior drug use did not meet the second test, it was inadmissible. Even if we were to find sufficient minimal relevance to satisfy the second test, the third test clearly was not met in this case, because its probative value was substantially outweighed by the danger of unfair prejudice. Mil.R.Evid. 403. The Government argues that the military judge’s instructions cured the error. The military judge told the court members that the evidence of prior drug use was “background information.” Although he cautioned them not to conclude that appellant “is a bad person or has criminal tendencies,” he did not define “background information” or tell the court members for what legitimate purpose they could consider the evidence. This lack of guidance left the evidence of uncharged misconduct in the posture of a “wild card,” to be considered and used by the court members for undefined purposes. We hold that the instruction was inadequate to cure the error. Finally, we turn to the question of plain error. The Government argues that the defense waived their objection to Airman Vith’s testimony—Mil.R.Evid. 103(a)(1); appellant asserts that erroneous admission of the evidence of uncharged misconduct was not waived because its admission was plain error. Mil.R.Evid. 103(d). Although trial defense counsel did not make an objection at the time of Airman Vith’s testimony, she had made a motion in limine at the beginning of the trial. After trial counsel represented that he would introduce evidence of uncharged misconduct only “if the door was opened by the accused testifying himself,” the military judge deferred ruling on the motion. Contrary to his predecessor’s earlier representations, the second trial counsel offered Airman Vith’s testimony in his casein-chief. The second military judge never explicitly ruled on the motion. Trial defense counsel attempted to change the forum to a bench trial when she learned that Airman Vith would testify, but she did not renew her objection when Airman Vith actually testified. While she did not make the timely and specific objection contemplated by Mil.R.Evid. 103(a)(1), her actions fall short of acquiescence or a deliberate defense strategy. See generally United — 75 — States v. Gamble, 27 MJ 298, 306-07 (CMA 1988); United States v. Thomas, 11 MJ 388, 392 (CMA 1981). The plain-error exception in Mil.R. Evid. 103(d) should “be used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.” United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 1692 n. 14, 71 L.Ed.2d 816 (1982); United States v. Fisher, 21 MJ 327, 328-29 (CMA 1986). In determining whether to apply the plain-error exception, “a reviewing court cannot properly evaluate a case except by viewing such a claim against the entire record.” United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 1046-47, 84 L.Ed.2d 1 (1985). The error must not only have “seriously affected ‘substantial rights,’ ” it must also have “had an unfair prejudicial impact on the jury’s deliberations.” Id. at 17 n. 14, 105 S.Ct. at 1047 n. 14; United States v. Fisher, 21 MJ at 328. After reviewing the entire record, we hold that admission of Airman Vith’s testimony regarding appellant’s prior drug use was plain error. Elizabeth Gevedon, an acknowledged cocaine user, supported the defense theory of innocent ingestion. The prosecution countered appellant’s claim of innocent ingestion with the immunized testimony of two acknowledged drug users, Airmen Vith and Wilson. A prosecution rebuttal witness, Sherry Sigmon, a convicted drug supplier, supported the defense. In addition to Airman Vith’s testimony about appellant’s habitual abuse of methamphetamines, the court members were presented with Dr. Wade’s testimony that methamphetamine is the “poor man’s cocaine.” Trial counsel exhorted the court members to use their “knowledge of the ways of the world” and argued that “people who use methamphetamine are just a[s] likely to use cocaine.” This argument exhorted the court members to use the evidence for the precise purpose prohibited by Mil. R.Evid. 404(b). Notwithstanding the military judge’s caution that they should not conclude from this “background information” about appellant’s prior drug abuse “that the accused is a bad person or has criminal tendencies,” the overwhelming impression left with the court members was that appellant was an habitual drug user, likely to use cocaine. Furthermore, in resolving appellant’s claim of innocent ingestion, the court members were confronted with a close factual question: Was appellant the innocent victim of a well-meaning friend or was he part of a claque of drug users who were lying to protect one of their own? We conclude that painting appellant as an habitual drug user was likely to have “had an unfair prejudicial impact on the jury’s deliberations.” 470 U.S. at 17 n. 14, 105 S.Ct. at 1047 n. 14. Accordingly, we hold that prejudicial error occurred. Art. 59(a), UCMJ, 10 USC § 859(a). The decision of the United States Air Force Court of Military Review is reversed. The findings of guilty and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Air Force. A rehearing may be ordered. Chief Judge SULLIVAN and Judges COX and WISS concur. Footnotes [1] Air Force Office of Special Investigations. [2] See United States v. Vith, 34 MJ 277 (CMA 1992).