United States v. Toro

34 M.J. 506, 1991 CMR LEXIS 1603, 1991 WL 285783
CourtU S Air Force Court of Military Review
DecidedDecember 19, 1991
DocketACM 28653
StatusPublished
Cited by9 cases

This text of 34 M.J. 506 (United States v. Toro) 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. Toro, 34 M.J. 506, 1991 CMR LEXIS 1603, 1991 WL 285783 (usafctmilrev 1991).

Opinion

OPINION OF THE COURT

JAMES, Judge:

Convicted of divers drug offenses,1 appellant assigns numerous errors that can be categorized as claims of error at trial, a complementary claim that the trial defense counsel’s assistance was ineffective, a claim that the sentence is too severe, and a final claim relating to the lack of terms of tenure for the service of military judges and appellate military judges. We also address appellant’s interlocutory motion for release from confinement pending appeal. We find no errors requiring relief, and we affirm the conviction and sentence.

Appellant assigned six errors relating to trial counsel’s tactics at trial. However, [511]*511some of his assignments are general statements that, like a Trojan horse, carry many issues. We address each aspect below.

I. TRIAL COUNSEL’S VOIR DIRE

Appellant complains that trial counsel’s examination of the court members was improper. See R.C.M. 912(d). Trial counsel’s examination was extensive, and he did seek to introduce his case to the members through it. Little of it was about the members and their qualifications. Instead, trial counsel covered the mechanics of drug abuse, its frequently social but covert nature, the lengthy history of drug abuse by his witnesses and their other misconduct, much of it reflecting ill on their trustworthiness. He converted his inquiries to permissible voir dire in most cases by asking, after too much discourse, whether the members could or would consider in deliberations the information he summarized.

Though we recognize that to be a widely popular tactic, we disapprove of it. It invites needless and endless controversy, and it risks confusion that counsel’s summarization may be recalled as if it were evidence. Such examinations are only tenuously related to the legitimate purpose of voir dire. See generally, Air Force Standards for the Administration of Criminal Justice, standard 3-5.3(c) (promulgated 4 December 1989). Accord, ABA Standards for the Administration of Criminal Justice, Prosecution Function, standard 5.3(c).2 However, no authority makes it error per se.

Instead, the military retains its traditional, generous approach which gives great latitude to counsel. See United States v. Smith, 27 M.J. 25 (C.M.A.1988). Some of the inquiries, e.g. those related to the credibility of witnesses, have been considered before and found permissible. See, e.g., United States v. Huntsman, 22 U.S.C.M.A. 100, 46 C.M.R. 100 (1973). A military judge’s ruling on an objection to voir dire is reviewable only for a clear abuse of discretion, and relief is warranted only when prejudice is shown. United States v. Parker, 6 U.S.C.M.A. 274, 19 C.M.R. 400 (1955). Absent plain error,3 we find no abuse of discretion where the military judge only refrained from intervening sua sponte in a process in which counsel are given great latitude. The need for such intervention in this case was dubious. Furthermore, the trial counsel’s questions were, as appellate defense counsel observed, “[ujnimpeded by objections.” Accordingly, any error was waived. R.C.M. 905(e).

II. TRIAL COUNSEL’S OPENING STATEMENT

Appellant also complains that trial counsel’s opening statement was improper because trial counsel commented on the association of the appellant with appellant’s girlfriend, Miss Lee. She was the frequent supplier of the drugs abused by appellant and his friends. Appellant also [512]*512complains that trial counsel commented on the offenses of others (his associates who abused drugs, too). See generally, R.C.M. 913(b). Once again, we find no error warranting relief.

The first sentence in trial counsel’s opening statement set the tone for the remainder:

[T]he evidence in this case mil show that during the two year period between January 1987 and January 1989 the accused virtually lived on methamphetamine, virtually lived on crank.

(Emphasis added.) From that introduction, trial counsel continued to describe in detail the expected testimony of his witnesses. Except in insignificant detail, the evidence was admitted as trial counsel forecast.4

Many of the witnesses were drug abusers themselves who abused drugs with the appellant and often with the ubiquitous Miss Lee. In the course of the opening, as in the course of examining each such witness, trial counsel disclosed the details of the witnesses’ abuse of drugs and similar matters bearing on their credibility, choosing to disclose them himself instead of permitting appellant the advantage of revealing them through cross-examination.5 We know of no rule that would confine trial counsel’s opening in this setting. As we discuss below, the evidence of other misconduct of the witnesses and the involvement of Miss Lee was inescapable and not inadmissible. Therefore, there was no error when trial counsel described the testimony expected in good faith. R.C.M. 913(b), Discussion. See generally annotation, Prosecutor’s Reference in Opening Statement to Matters Not Provable or Which He Does Not Attempt to Prove as Grounds for Relief, 16 A.L.R.4th 810, § 15 at 875 (1982); 23A C.J.S. Criminal Law § 1240 (1989).

We further note that there was no objection at trial to any part of the trial counsel’s opening statement.

The primary purposes for objections are to let the opponent correct the error, to inform the court so it can rule intelligently and quickly, and to reduce the necessity for reversal and new trial.
* * * * * *
It follows from the foregoing rules that except under extreme circumstances, as where the matter involves the jurisdiction of the court, the failure of the accused to avail himself of the opportunity to object at the earliest opportunity to an irregularity of which he has knowledge will be deemed to be a waiver of the objection.

23A C.J.S. Criminal Law § 1150 (1989). Therefore, we hold that, absent plain error,6 objection to improper opening statements is waived if not asserted at trial. R.C.M. 905(e). Cf R.C.M. 920(c). We do not find plain error here.

III. PRESENTATION OF THE PROSECUTION’S CASE

A. Human Lie Detector Testimony?

Appellant complains that an agent of the Office of Special Investigations was allowed to give his opinion of the credibility of other witnesses who were informants who worked for him. We think appellant tries to make too much of the testimony. He argues the issue as if it involved another version of “human lie detector” testimony forbidden under United States v. Harrison, 31 M.J. 330 (C.M.A.1990), and United States v. Petersen, 24 M.J. 283 (C.M.A. 1987), but we hardly think the issue is that fancy. Instead, we take the testimony as [513]*513relating to a trait of character of a witness, to be considered under Mil.R.Evid. 608(a).

“Human lie detector” testimony states that the witness is telling the truth about the relevant events at trial and thus invades a major function of the factfinder. Harrison

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Bluebook (online)
34 M.J. 506, 1991 CMR LEXIS 1603, 1991 WL 285783, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-toro-usafctmilrev-1991.