United States v. Taylor

44 M.J. 475, 1996 CAAF LEXIS 98, 1996 WL 726467
Court of Appeals for the Armed Forces·Decided September 18, 1996·No. No. 95-0532; Crim.App. No. 30599·Published·Cited by 14 cases

Opinion

Opinion of the Court

CRAWFORD, Judge:

Contrary to his pleas, appellant was convicted at Tinker Air Force Base, Oklahoma, of premeditated murder, burglary, and larceny, in violation of Articles 118, 129, and 121, Uniform Code of Military Justice, 10 USC §§ 918, 929, and 921, respectively. The convening authority approved the sentence of a dishonorable discharge, confinement for life, total forfeitures, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence. 41 MJ 701 (1995). We granted review of the following issues:

I
WHETHER THE APPEALS COURT’S FAILURE TO SET ASIDE APPELLANT’S CONVICTION VIOLATED HIS SIXTH AMENDMENT AND STATUTORY RIGHTS TO TRIAL BY A FAIR AND IMPARTIAL PANEL WHERE COLONEL [L], THE PRESIDENT OF APPELLANT’S COURT-MARTIAL, WAS SUBSEQUENTLY FOUND GUILTY OF COMMITTING NUMEROUS HEINOUS CRIMES CONTEMPORANEOUSLY WITH APPELLANT’S ALLEGED MISCONDUCT AND WAS UNDER INVESTIGATION FOR THOSE CRIMES AT THE TIME OF APPELLANT’S TRIAL.
II
WHETHER THE JUDGE IMPROPERLY ALLOWED TRIAL COUNSEL’S INSTRUCTION THAT “PRIOR CONSISTENT STATEMENTS OF ROWDEN AND BASSO COULD BE CONSIDERED FOR THEIR TRUTH,” BECAUSE TRIAL COUNSEL FAILED TO LAY A PROPER FOUNDATION THAT SUCH STATEMENTS WERE MADE BEFORE THE MOTIVE TO FABRICATE AROSE.

We hold that appellant was not denied the right to a fair trial. Defense counsel waived any objection that the inconsistent statements could not be considered as substantive evidence. We also hold that there was no plain error in instructing the members concerning the prior consistent statements.

FACTS — ISSUE I

Appellant’s trial began on February 2, 1993, and ended on February 12, 1993. On October 21,1993, the president of appellant’s court-martial, Colonel L, was convicted pursuant to his pleas of sodomy (7 specifications), two of which were with a child under the age of 16; conduct unbecoming an officer by having an illicit relationship with a male staff sergeant assigned to the colonel’s unit; and committing indecent acts upon a male under the age of 16 (5 specifications), with an [477]*477adult male (6 specifications), and with the staff sergeant (3 specifications), in violation Articles 125, 133, and 134, UCMJ, 10 USC §§ 925, 933, and 934, respectively. Colonel L’s adjudged and approved sentence extended to a dismissal and confinement for 7 years. These allegations obviously were not known or brought out at appellant’s trial in February 1993.

The court below found that there were only two voir dire questions that

Colonel L arguably could have failed to answer honestly: (1) “Is any member of the court aware of any other matter which the member believes may be grounds for challenge by either side against him? Negative response;” (2) “[D]o all of you have the frame of mind that you would want court members to have if the roles were reversed and you were accused of committing a crime. Are all of you in that impartial mindset? Affirmative response from all members.”

41 MJ at 704.

DISCUSSION OF ISSUE I

In the past we have addressed the question whether a court member’s failing to respond or giving an incorrect response prejudiced the rights of the defendant. United States v. Modesto, 43 MJ 315 (1995); United States v. Mack, 41 MJ 51, 54-55 (CMA 1994), citing McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 850, 78 L.Ed.2d 663 (1984). As the Supreme Court in McDonough stated: '

[T]o obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause____

A case similar to the present one cited by both parties is United States v. Aguon, 851 F.2d 1158 (9th Cir.1988). Aguon discovered that a juror in her case pleaded guilty subsequent to her trial to a charge similar to that brought against the defendant “of taking kickbacks in connection with the letting of paving contracts----” 851 F.2d at 1170. He and the other jury members were only asked if there was “any reason why he ... might not be able to be fair to both sides.” The court affirmed Aguon’s conviction. As in Aguon, here

[t]here is no evidence of prejudice against [appellant]. There is no showing that [Colonel L] failed to answer honestly a material question. There is no evidence that at the time he was empaneled he knew he was under investigation, nor is there evidence of either his actual prejudice against [appellant] or words or actions that would show he might be prejudiced.

851 F.2d at 1170.

Thus, we hold that appellant was not denied a fair trial by impartial court members.

FACTS — ISSUE II

When SGT Rowden was first-questioned by the police, he denied any involvement in the murder. It was only after he was pressed that he confessed to being an unwitting accomplice by supplying the murder weapon and becoming involved in a subsequent coverup. SGT Rowden had been tried and convicted of involuntary manslaughter prior to his testimony. To rebut SGT Row-den’s testimony on cross-examination, the prosecution, with defense counsel’s consent, played Rowden’s videotaped statement he made to the civilian police. This statement, the defense argued, was inconsistent with Rowden’s trial testimony. The testimony by other witnesses in the case indicated that Rowden could not have been outside and have heard two shots being fired. The statement also established Rowden’s detailed knowledge of the crime, arguably because he was the perpetrator.

Basso voluntarily went to the police station days after the murder and wrote out a statement without being interrogated. The defense offered this statement at trial to rebut Basso’s trial testimony that appellant said he killed the victim. In his statement to the police Basso never used the word “kill.” Basso testified that he did not tell the police earlier because he was scared of appellant. However, cross-examination established that their work schedules were such that they [478]*478were never at home at the same time; thus, the defense argued the fear was unjustified.

The judge gave the following instructions:

You have heard evidence that the witnesses, Mr. Michael Basso and Sergeant Eric V. Rowden made statements prior to trial that may be inconsistent in part with their testimony at trial. If you believe that inconsistent statements were made, you may consider the inconsistencies in evaluating the believability of the testimony of these witnesses. You may not, however, consider the prior statements as evidence of the truth of the matters contained in those portions of the prior statements. On the other hand, you have also heard evidence that those witnesses may have made statements prior to trial that may be consistent with their testimony at this trial. You may consider prior consistent statements, if any, as evidence of the truth

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United States v. Taylor, 44 M.J. 475, 1996 CAAF LEXIS 98, 1996 WL 726467 (Ark. 1996).

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