United States v. Billings

61 M.J. 163, 2005 CAAF LEXIS 624, 2005 WL 1412966
CourtCourt of Appeals for the Armed Forces
DecidedJune 15, 2005
Docket03-0568/AR
StatusPublished
Cited by40 cases

This text of 61 M.J. 163 (United States v. Billings) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Billings, 61 M.J. 163, 2005 CAAF LEXIS 624, 2005 WL 1412966 (Ark. 2005).

Opinions

Judge CRAWFORD

delivered the opinion of the Court.

Pursuant to her pleas, Appellant was convicted of carrying a concealed weapon, in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000). Contrary to her pleas, a general court-martial comprising officer and enlisted members, convicted her of conspiracy to commit assault consummated by a battery (in violation of Article 81, UCMJ, 10 U.S.C. § 881 (2000)), conspiracy to commit robbery (in violation of Article 81), robbery with a firearm (in violation of Article 122, UCMJ, 10 U.S.C. § 922 (2000)), two specifications. of assault consummated by a battery (in violation of Article 128, UCMJ, 10 U.S.C. § 928 (2000)), and engaging in organized criminal activity (in violation of Article 134). On January 14, 1999, she was sentenced to be dishonorably discharged and confined for twenty-seven years. She was credited with 726 days of confinement. The convening authority approved the adjudged sentence. The United States Army Court of Criminal Appeals affirmed the findings and sentence on June 13, 2003.

This Court granted review of the following issue:

WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERRED IN UPHOLDING THE MILITARY JUDGE’S DECISION TO (1) ACCEPT A JEWELER CALLED BY THE GOVERNMENT AS AN EXPERT IN “CARTIER WATCH IDENTIFICATION”; (2) ALLOW THAT JEWELER TO IDENTIFY A WATCH IN A PICTURE AS SOLID GOLD (RATHER THAN GOLD PLATE); AND (3) ALLOW THAT JEWELER TO TESTIFY THAT THE WATCH IN ONE PICTURE IS THE SAME STYLE AS THE WATCH IN A DIFFERENT PICTURE.

[165]*165We hold that, under the circumstances of this case, the military judge erred in allowing the jeweler to identify a watch as solid gold from a photograph. This error was harmless, however. Therefore, we affirm the decision of the Army Court of Criminal Appeals.

FACTS

Specialist Jacqueline Billings was the leader of a group in Killeen, Texas, known variously as the “Gangster Disciples” and as “Growth and Development”. In the summer of 1997, the gang killed two people and committed a series of other offenses, including an armed robbery at the management office of the Monaghan Apartments. While Robert G. Monaghan and the apartment manager were bound, the Gangster Disciples stole approximately $2,500 in cash and absconded with Mr. Monaghan’s gold watch, which he valued at $18,500. The police never recovered Mr. Monaghan’s property.

At trial, the Government called several rank-and-file members of the Gangster Disciples as witnesses. The Government also produced two photographs of Appellant wearing a gold-colored watch that were admitted into evidence. The Government then called Mr. Monaghan to establish the value of his stolen watch by testifying that the watch depicted in a Cartier Tank Franaise advertisement was identical to his watch. Mr. Monaghan testified that he had bought the watch in Rome for the equivalent of just under $15,000. He stated that it “was a bargain to [him] because here, in the States, that watch sells for $18,500.00 plus tax.” The Government also offered receipts to help establish the value of the watch.

The Government then called Floyd R. Pa-gel, a jeweler, as an expert witness. Before Mr. Pagel testified, defense counsel asked for a hearing pursuant to Article 39(a), UCMJ, 10 U.S.C. § 839(a)(2000), to examine Mr. Pa-gel’s qualifications, as well as the necessity of any expert testimony at all on the topic. At that hearing, the military judge denied the defense counsel’s request for a full hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), but did set limits on the scope of Mr. Pagel’s testimony. The military judge ruled that Mr. Pagel could describe characteristics of Cartier watches and state whether he recognized any of them in the watch Appellant was wearing in the Governments photographic exhibits but would not be allowed to say whether the watch pictured was a genuine Cartier watch. The military judge expressly barred Mr. Pa-gel from stating whether the watch in the Governments photos was Mr. Monaghans.

Mr. Pagel testified that he had been in the jewelry business for about twenty-five years. He was largely self-taught but had attended several training courses, and regularly read professional periodicals. He stated that he had been a member of the National Jewelers Association of Appraisers, a peer-elected group, for about four years. He conducted appraisals of jewelry in the course of his business, and insurance companies have accepted his appraisals to determine value.

Mr. Pagel testified that he attended professional watch shows and was familiar with Cartier watches. He described certain characteristics of those watches and stated that they were relatively easy to identify because of those features.

The trial counsel then asked Mr. Pagel to examine the Government’s exhibits depicting Appellant and to tell the panel what to look for in determining whether the watch in those photos was a Cartier Tank Franaise. After an objection, defense counsel was permitted to voir dire Mr. Pagel.

During that questioning, Mr. Pagel admitted that he did not sell Cartier watches. He also admitted that he had never actually seen a Cartier Tank Franaise. Finally, he stated that he was not certified by the Gemological Institute of America, an organization that licenses jewelers who sell diamonds and colored stones. At the conclusion of this questioning, the trial counsel offered Mr. Pagel as an expert. Over defense objection, the military judge recognized Mr. Pagel as an expert in the field of Cartier watch identification.

Mr. Pagel then examined the Government’s photos of Appellant with the aid of a ten-power magnification loupe and stated [166]*166that the watch reflected many of the unique characteristics of Cartier watches. He added that the color of the watch worn by Appellant in the photos suggested that it was solid gold, rather than gold plated. He based this conclusion partly on comparison with a watch worn by another person also shown in one of the Government’s exhibits.

On cross-examination, Mr. Pagel admitted that he would not be surprised to learn of fake Tank Franaises. He stated that he rarely attempts to evaluate the quality of watches using photographs alone, and noted two specific drawbacks to identifying the watch solely from these photographs: fighting can distort the color of the metal, and the word “Cartier” is not visible on the watch in the photographs of Appellant.

DISCUSSION

Military Rule of Evidence (M.R.E.) 702 governs testimony by expert witnesses. This Court reviews military judges’ decisions regarding expert witnesses for abuse of discretion. See United States v. Griffin, 50 M.J. 278, 284 (1999); see also General Electric Co. v. Joiner, 522 U.S. 136

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Cite This Page — Counsel Stack

Bluebook (online)
61 M.J. 163, 2005 CAAF LEXIS 624, 2005 WL 1412966, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-billings-armfor-2005.