United States v. Martin

13 M.J. 66, 1982 CMA LEXIS 18689

• Court: United States Court of Military Appeals
• Decided: April 19, 1982
• Docket: No. 39,436; NCM 78 1151
• Status: Published

Opinions

Opinion

FLETCHER, Judge:

The case of appellant before us¹ presents a variety of legal issues both granted² by us and certified³ by the Judge Advocate General of the Navy pursuant to Article 67(b)(2) of the Uniform Code of Military Justice, 10 U.S.C. § 867(b)(2). After careful consideration of the possible errors raised, we conclude that none of the issues requires us to grant relief.

I

We turn first to another example of a trial judge’s equation of “reasonable doubt” with “substantial doubt,” an error apparently perpetuated by the use of standard military judge’s instructions. It has been made clear that such is improper and prejudicial and will result in reversal. United States v. Cotten, 10 M.J. 260 (C.M.A.1981). It is equally clear that “hesitate to act” language in reasonable doubt instructions is preferred to “willing to act” language. Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954), quoted in United States v. Cotten, supra at 262. Prerequisite to reversal in these cases is a specific defense objection to the improper “equation of reasonable and substantial doubt.” United States v. Brooks, 11 M.J. 420 (C.M.A.1981); United States v. Cotten, supra; and United States v. Salley, 9 M.J. 189 (C.M.A.1980).

In this case, reversal is inappropriate. Trial defense counsel failed to voice any specific objection to the use of “substantial doubt” in the military judge’s instructions to the court members. In discussing proposed instructions outside the hearing of the members, counsel merely voiced his concern relative to the appropriateness of “willing to act” language, while presenting to the judge several proposed alternative instructions. One of these was a direct quote from E. Devitt and C. Blackmar, Federal Jury Practice and Instructions § 11.14 (1977). Had this instruction been accepted, appellant would have inadvertently benefited from the exclusion of “substantial doubt.” All of these proposed alternatives, however, were declined by the military judge. These facts are in direct contrast with United States v. Brooks, supra, where “the defense counsel objected with extensive specificity to the equation of reasonable and substantial doubt” and United States v. Cotten, supra at 261, where defense counsel properly registered his objection.

II

During trial of this case, expert testimony was presented regarding identification of a bite mark found on the decedent’s cheek, after the reliability of the science of bite-mark identification was established. The military justice system at the time of this trial employed the test of Frye v. United States, 293 F. 1013 (D.C.Cir.1923), for admissibility of scientific evidence. United States v. Hulen, 3 M.J. 275 (C.M.A.1977). We conclude from the testimony that the tests employed by the expert were sufficiently established to have gained general acceptance in the field of bite-mark identification.⁴

III

We have examined granted issue II and, upon further consideration, deem the grant improvident; this issue is vacated. There remain three questions concerning the immunity of witnesses before us pursuant to the certificate of the Judge Advocate General of the Navy. After extensively examining these in light of the factual presentation of this case, we conclude it is more appropriate to answer them in United States v. Villines, 13 M.J. 46 (C.M.A.1982). We therefore decline to answer them here.

The decision of the United States Navy Court of Military Review is affirmed.

1 . At his general court-martial, appellant was found guilty of a single specification of violation of Article 118, Uniform Code of Military Justice, 10 U.S.C. § 918, and sentenced to a dishonorable discharge, total forfeitures not to include allowances, confinement at hard labor for 30 years and reduction to E — 1. The convening authority approved and the intermediate court affirmed the findings and sentence. 9 M.J. 731 (N.C.M.R.1979). We granted review of the issues listed in footnote 2. The Judge Advocate General of the Navy filed a Certificate for Review, setting forth the issues listed in footnote 3.

2 . The following issues were granted (11 M.J. 78 [C.M.A.1981]):

I

WHETHER THE MILITARY JUDGE MATERIALLY ERRED TO THE SUBSTANTIAL PREJUDICE OF THE APPELLANT BY FAILING TO GIVE A DEFENSE REQUESTED INSTRUCTION ON REASONABLE DOUBT?

II

WHETHER THE MILITARY JUDGE MATERIALLY ERRED TO THE SUBSTANTIAL PREJUDICE OF THE APPELLANT BY PERMITTING TESTIMONY THAT THE APPELLANT BIT AND CHEWED OBJECTS DURING PERIODS OF TENSION? IF SUCH TESTIMONY WAS MINIMALLY RELEVANT, WHETHER ITS PROBATIVE VALUE WAS SUBSTANTIALLY OUTWEIGHED BY ITS DANGER OF UNFAIR PREJUDICE TO THE APPELLANT?

3 . Issues certified by the Judge Advocate General of the Navy (9 M.J. 194 [C.M.A.1980] ):

I

WAS THE U. S. NAVY COURT OF MILITARY REVIEW CORRECT, AS A MATTER OF LAW, WHEN IT HELD THAT THE ACCUSED HAD STANDING TO CHALLENGE THE CONVENING AUTHORITY’S REFUSAL TO GRANT IMMUNITY TO ANOTHER INDIVIDUAL, REQUESTED AS A DEFENSE WITNESS?

II

IF THE ANSWER TO QUESTION I, ABOVE, IS AFFIRMATIVE, WAS THE U. S. NAVY COURT OF MILITARY REVIEW CORRECT, AS A MATTER OF LAW, IN HOLDING THAT THE QUESTION OF A CONVENING AUTHORITY’S OBLIGATION TO GRANT USE IMMUNITY TO A REQUESTED DEFENSE WITNESS WOULD BE RESOLVED BY A BALANCING TEST, IN WHICH THE GOVERNMENT’S JUSTIFICATION FOR WITHHOLDING THE REQUESTED IMMUNITY WOULD BE BALANCED AGAINST THE ACCUSED’S SHOWING THAT THE REQUESTED WITNESS WOULD PROVIDE TESTIMONY OF A CLEARLY EXCULPATORY NATURE? DID THE COURT CORRECTLY SET FORTH THE TEST TO BE SO UTILIZED AND IF IT DID, UNDER THAT TEST, SHOULD THE REQUESTED DEFENSE WITNESS HAVE BEEN IMMUNIZED?

III

WAS THE CORRECT STANDARD OF REVIEW EMPLOYED BY THE U. S. NAVY COURT OF MILITARY REVIEW IN THE INSTANT CASE, WHEN IT UPHELD THE CONVENING AUTHORITY’S REFUSAL TO EXTEND USE IMMUNITY TO A REQUESTED DEFENSE WITNESS?

IV

WAS THE U. S. NAVY COURT OF MILITARY REVIEW CORRECT, AS A MATTER OF LAW, IN CONCLUDING THAT BITE-MARK IDENTIFICATION HAS REACHED A SUFFICIENT LEVEL OF SCIENTIFIC RELIABILITY TO WARRANT ADMISSION INTO EVIDENCE THROUGH EXPERT TESTIMONY BEFORE A COURT-MARTIAL?

4 . Notice should be taken of Mil.R.Evid. 702, which may broaden the Frye v. United States, 293 F. 1013 (D.C.Cir.1923), rule, although we cannot comment on its effect, as it did not apply to the case as then tried.