United States v. Gillette

22 M.J. 840, 1986 CMR LEXIS 2456
CourtU S Air Force Court of Military Review
DecidedJune 12, 1986
DocketACM 25046
StatusPublished
Cited by3 cases

This text of 22 M.J. 840 (United States v. Gillette) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Gillette, 22 M.J. 840, 1986 CMR LEXIS 2456 (usafctmilrev 1986).

Opinion

DECISION

HODGSON, Chief Judge:

This is an appeal from a conviction for premeditated murder. The approved sentence extends to a dishonorable discharge, confinement for life, total forfeitures and reduction to airman basic. Finding no prejudicial error as to either the findings of guilty or the sentence, we affirm.

I

The appellant and the victim were married in October, 1975. In spring, 1982, he met Suyen Gutierrez who was attending a bible college in Henderson, Nevada. Suyen did not know the appellant was married and they became attracted to one another through correspondence and visits by the appellant. Ultimately, in March 1984, the appellant asked Suyen to marry him and eventually she accepted. The wedding was set for 8 September 1984, and the arrangements of the ceremony were begun in late July or early August with the wedding invitations being sent out some time during this period.

[841]*841At about 0830 hours, 28 August 1984, emergency room personnel from George Air Force Base Hospital, who were responding to a call from the appellant, arrived at his on-base quarters and found Mrs. Gillette lying in bed on her back with the upper portion of her body turned to the left and a brown plastic bag tucked under her head. After attempts to revive her failed, the attending physician pronounced her dead.

In a statement given to investigators the day of the incident the appellant said he and his wife came home about 2230 hours the night before and fed themselves and the children. His wife had three mixed drinks and went to bed. However, she had trouble sleeping and he gave her two sleeping pills. The next morning he saw nothing amiss with either his wife or small son who had gotten in bed with her, and left for work. He returned about 0830 and found his wife still in bed with a plastic bag beneath her head covering her nose and mouth. He went next door to call an ambulance and returned to take his son from the bedroom.

The autopsy revealed a high level of diphenhydramine which is a generic component of over-the-counter sleeping aids such as “NYTOL.” The amount of disphenhydramine in Mrs. Gillette’s system would be equal to approximately 10 “NYTOL” tablets. While this dosage is not fatal, it makes a person “very, very, very sleepy and difficult to wake up.” The amended autopsy protocol gave the cause of death as “disphenhydramine toxicity and suffocation, minutes to hours, with the contributing causes described as a fatty liver and cardiomyopathy.”

On 8 September 1984, the appellant married Suyen Gutierrez and indicated in his marriage license that his first marriage had ended in divorce in 1982.

In a verbal statement given to law enforcement investigators on 14 November, the appellant admitted killing his wife by holding her face down on a pillow covered with a plastic bag until she quit “moving.” He explained his action as the result of the “conflict with [his] agreement to marry Suyen [Gutierrez].” He related he slept with his wife until sometime between four and five A.M. when he got up and went down stairs to get a trash bag which he “smoothed” over the pillow. He rolled his wife over, pushed her face into the pillow until she wasn’t “moving.” He stated he wanted her to suffocate. The investigation disclosed that an alarm clock in the bedroom was set to go off at three. In addition the government established that the appellant was experiencing severe financial problems and was the beneficiary of a $29,-000 life insurance policy he carried on his wife.

At trial the appellant denied killing his wife and repudiated his pretrial confession which he contended was false. He testified that when told that Suyen was going to be questioned he was overcome with despair and hopelessness and “felt lost.” It was in this frame of mind that he falsely admitted smothering his first wife.

Doctor Christopher Ebbe, a clinical psychologist, testified that it was unlikely that the appellant would commit a deliberate violent crime. Doctor Ebbe was also of the opinion that the appellant’s personality made it possible for him to falsely confess to a crime he had not committed. The defense suggested that Mrs. Gillette’s death was suicide.

II

The initial assigned error urges that the trial court lacked jurisdiction to hear the case as the alleged criminal conduct is not service-connected. This argument has no basis in law. Since the offense occurred at George Air Force Base, there is no question about court-martial jurisdiction over it. Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971); United States v. Scott, 21 M.J. 345 (C.M.A.1986).

III

Special Agent James K. Poorman is a forensic consultant with the Office of Special Investigations (OSI) in the field of fingerprint identification and analysis. Poor-man stated that body surfaces, i.e., fingers, palms and ears give off oils and perspiration and leave a latent impression that is [842]*842not readily visible to the eye. To “lift” a fingerprint from the surface where it is found to a medium from which is can be more easily examined involves a variety of techniques, chemical and mechanical. Chemical techniques are more commonly used and are divided generally into two categories: 1) iodine and cyanoacrylate fuming, or 2) dusting with silver nitrate. The surface, i.e., porous or non-porous, where the print is discovered determines which technique is best.

Using procedures generally accepted in fingerprint identification on a brown plastic bag found in the appellant’s bedroom, Poor-man obtained a configuration on the bag that had the characteristics of a face. In his opinion the general outline was that of an eye, nose and an “apparent mouth.” He offered no opinion as to the identity of the person represented by the “faceprint.” Over defense objection, the trial judge permitted Poorman to relate to the members the circumstances just recited.

The appellant argues that Poorman’s area of expertise, i.e., “faceprint identification” has not gained general acceptance in forensic criminal investigations and therefore does not meet the standard enunciated in Frye v. United States, 293 F. 1013 (D.C. Cir.1923). Accordingly, his testimony should have been excluded. Further, Poor-man was not qualified to offer an expert opinion in this case.

In United States v. Mustafa, 22 M.J. 165 (C.M.A.1986), the Court of Military Appeals concluded that Mil.R.Evid. 702 and its parent, Federal Rule of Evidence 702, create a lower threshold for deciding whether an individual is an expert and requires only that the profered witness have some specialized knowledge as a result of experience or education. The touchstone is whether the testimony would be helpful to factfinders. United States v. Mustafa, supra; see United States v. Collins, 559 F.2d 561 (9th Cir.), cert. denied, 434 U.S. 907, 98 S.Ct. 309, 54 L.Ed.2d 195 (1977).

The forensic fingerprint techniques used by Poorman to obtain the “faceprint” are well established in the scientific community. It should be also remembered that he voiced no conclusion as to whom the “face-print” belonged.

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Bluebook (online)
22 M.J. 840, 1986 CMR LEXIS 2456, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gillette-usafctmilrev-1986.