United States v. Pope , 69 M.J. 328 ( 2011 )

UNITED STATES, Appellee
v.
Audrey M. POPE, Airman First Class
U.S. Air Force, Appellant
No. 10-0447
Crim. App. No. S31578
United States Court of Appeals for the Armed Forces
Argued November 9, 2010
Decided January 31, 2011
RYAN, J., delivered the opinion of the Court, in which
EFFRON, C.J., and BAKER and ERDMANN, JJ., joined. STUCKY,
J., filed a separate opinion concurring in the result.
Counsel
For Appellant: Captain Andrew J. Unsicker (argued); Major
Darrin K. Johns (on brief); Major Shannon A. Bennett.
For Appellee: Major Nicole P. Wishart (argued); Captain
Naomi N. Porterfield and Gerald R. Bruce, Esq. (on brief);
Colonel Don M. Christensen and Lieutenant Colonel Jeremy S.
Weber.
Military Judge: William M. Burd
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Pope, No. 10-0447/AF
Judge RYAN delivered the opinion of the Court.
Contrary to Appellant’s pleas, a panel of officers
sitting as a special court-martial convicted her of
wrongful use of cocaine, in violation of Article 112a,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a
(2006). The panel sentenced Appellant to a bad-conduct
discharge, confinement for three months, forfeiture of $450
of pay per month for three months, and reduction to E-1.
The findings and sentence were approved by the convening
authority and affirmed by the United States Air Force Court
of Criminal Appeals. United States v. Pope, No. ACM
S31578, 2010 CCA LEXIS 152, at *20, 2010 WL 4068930, at *7
(A.F. Ct. Crim. App. Mar. 8, 2010) (unpublished).
We granted review of four issues in this case:
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION
BY ADMITTING A GREEN DETOXIFICATION DRINK UNDER
THE DOCTRINE OF SIMILAR PHYSICAL EVIDENCE.
WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR
WHEN HE FAILED TO GIVE A LIMITING INSTRUCTION
THAT AN EXHIBIT WAS BEING ENTERED INTO EVIDENCE
FOR ILLUSTRATIVE PURPOSES ONLY.
WHETHER IT WAS PLAIN ERROR FOR THE MILITARY JUDGE
TO ALLOW TRIAL COUNSEL TO ELICIT TESTIMONY ON
APPELLANT’S RIGHT TO REMAIN SILENT AND TO ALLOW
TRIAL COUNSEL TO COMMENT ON THIS DURING HIS
FINDINGS ARGUMENT.
WHETHER THE CONTESTED FINDINGS AND SENTENCE IN
THE PRESENT CASE SHOULD BE SET ASIDE UNDER THE
CUMULATIVE ERROR DOCTRINE.
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United States v. Pope, No. 10-0447/AF
United States v. Pope, 69 M.J. 178 (C.A.A.F. 2010) (order
granting review). We agree with Appellant that it was an
abuse of discretion to admit the “green detoxification
drink” as demonstrative evidence. We further hold that it
was error -- but not prejudicial plain error -- to fail to
give a limiting instruction. Given the overwhelming
evidence of Appellant’s guilt, however, we are convinced
that these errors had no substantial impact on the verdict,
and thus did not materially prejudice Appellant’s
substantial rights. See Article 59(a), UCMJ, 10 U.S.C. §
859(a) (2006). Finding no other error, the findings and
sentence are affirmed.
I. FACTS
The charged specification stemmed from Appellant’s
positive urinalysis result in a random drug test.
Appellant reported to the drug testing center on March 24,
2008 at 3:09 pm. Appellant “appeared nervous” at the site.
She stayed until about 4:30 pm but failed to produce a
sample in a quantity sufficient for testing. Appellant was
instructed to return the next morning at 6:30 am to provide
a specimen, but she did not report back to the testing
center until 2:39 pm on March 25, 2008. According to
testimony by Government witnesses who worked at the site,
this time Appellant “was really antsy because she had to go
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United States v. Pope, No. 10-0447/AF
really, really, really bad” and she produced a sample
almost immediately, signing out at 2:46 pm. That sample
subsequently tested positive for cocaine at nearly ten
times the Department of Defense cutoff level.
Appellant stipulated to the following facts: (1) the
urine specimen tested was Appellant’s urine, (2) the urine
specimen “was properly handled and processed” by the drug
testing laboratory, and (3) the test results “accurately
reported the presence of the cocaine metabolite
Benzoylecgonine” in Appellant’s urine sample. The only
issue at trial was whether Appellant’s cocaine usage was
knowing and therefore “wrongful.” Article 112a, UCMJ.
Appellant’s roommate at the time of the urinalysis,
Airman First Class Krystal Elaine Sweeney, testified that
Appellant admitted that she had “gotten messed up” with her
brother, a former drug dealer who bought Appellant “green
drinks” that “cost around $50.00” to “clean out [her]
system” when “she would get messed up.” Each drink
consisted of a green liquid in a clear glass bottle with no
label. Sweeney testified that she saw bottles of these
green drinks in their shared refrigerator -- and saw
Appellant drink them -- “[a] few times. . . . maybe three
or four times” during the three-to-four-month period they
were roommates. However, Sweeney and Appellant did not
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United States v. Pope, No. 10-0447/AF
become roommates until March 24, 2008 -- the date Appellant
first reported to the drug testing center. Sweeney
testified that she did not remember seeing any green drinks
on that day; she could not recall the first time she saw
such a bottle. Trial counsel conceded to the military
judge that Sweeney did not see Appellant with a green drink
prior to her urinalysis.
Immediately before Sweeney’s testimony, trial counsel
requested an Article 39(a), UCMJ, 10 U.S.C. § 839(a)
(2006), session. The Government sought to introduce a
representative example of a green detoxification drink --
purchased by a Government investigator -- as a prop or
replica under the doctrine of similar physical evidence.
Trial counsel specifically noted that “the court members
would be instructed that the evidence is not actually
connected with the case, but is being admitted for
illustrative purposes only.” Defense counsel objected on
relevance, noting that “there is no tie to my client with
regard to that bottle” and that Appellant’s roommate did
not see Appellant with any such drink prior to her
urinalysis. The military judge overruled the objection and
admitted the green detoxification drink. When asked if the
bottle appeared to be “substantially the same type of
bottle, the same type of liquid” that she saw in
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Appellant’s possession, Sweeney responded in the
affirmative, with the exception that the exhibit had a
label indicating it was a detoxification drink whereas
Appellant’s bottles did not. The members were never
instructed that this bottle was for demonstrative purposes
only.
The Government also introduced expert testimony that
delay, consuming large volumes of water, and drinking
detoxification agents can cause “the concentration [of the
cocaine metabolite] to decrease over time.”
II. DISCUSSION
This Court will not reverse a conviction for an error
of law unless that error materially prejudiced an accused’s
substantial rights. Article 59(a), UCMJ; United States v.
Powell, 49 M.J. 460, 465 (C.A.A.F. 1998). We review de
novo whether the Government has met its burden of
establishing that the error did not have a substantial
influence on the findings in the context of the entire
case. United States v. Yammine, 69 M.J. 70, 78 (C.A.A.F.
2010).
A.
Appellant alleges that there were two errors related
to the demonstrative evidence: (1) the military judge
abused his discretion in admitting it; and (2) it was error
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for the military judge to fail to give a limiting
instruction on the use of the demonstrative evidence. We
agree.
1.
Demonstrative evidence -- also called illustrative
evidence -- “illustrates or clarifies the testimony of a
witness.” United States v. Heatherly, 21 M.J. 113, 115 n.2
(C.M.A. 1985). Demonstrative evidence is admitted solely
to help witnesses explain their testimony. Carson v.
Polley, 689 F.2d 562, 579 (5th Cir. 1982). “[I]f the
evidence is used to prove a complex, central, or difficult
to understand point, [then] it may have a place in the
court-martial.” Stephen A. Saltzburg et al., Military
Rules of Evidence Manual § 403.02[9], at 4-33 (6th ed.
2006).
However, “[d]emonstrative exhibits are inadmissible
where they do not illustrate or make clearer some issue in
the case; that is, where they are irrelevant, or where the
exhibit’s character is such that its probative value is
substantially outweighed by the danger of unfair
prejudice.” Benzel v. Keller Indus., Inc., 567 N.W.2d 552,
558 (Neb. 1997); see also United States v. Aldaco, 201 F.3d
979, 986 (7th Cir. 2000); Tritek Techs., Inc. v. United
States, 67 Fed. Cl. 727, 729-30 (Fed. Cl. 2005).
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United States v. Pope, No. 10-0447/AF
“The decision to permit or deny the use of
demonstrative evidence generally has been held to be within
the sound discretion of the trial judge.” Heatherly, 21
M.J. at 115 n.2. Thus, this Court has found no abuse of
discretion under Military Rule of Evidence (M.R.E.) 403
when the challenged demonstrative evidence was “relevant,
highly probative of critical issues, and not unfairly
prejudicial.” United States v. White, 23 M.J. 84, 88
(C.M.A. 1986).
But there are several problems with the demonstrative
evidence in this case.1 First, there was no evidence that
1
We agree that admissible underlying testimony is a
necessary predicate for the introduction of otherwise
relevant and material demonstrative evidence. United
States v. Pope, __ M.J. __ (2) (C.A.A.F. 2011) (Stucky, J.,
concurring in the result). This does not change our view,
consistent with case law from other jurisdictions, that
admission of the demonstrative evidence in this case was an
abuse of discretion under the facts of this case for the
reasons identified in this opinion. See, e.g., Aldaco, 201
F.3d at 986 (applying the Fed. R. Evid. 403 balancing test
to determine that the probative value of a replica shotgun
outweighed the prejudice to a criminal defendant); Finley
v. Marathon Oil Co., 75 F.3d 1225, 1231 (7th Cir. 1996)
(noting that judges should require “firm foundations”
because demonstrative evidence can be “in some cases too
powerful” a form of evidence, as it can lead a jury “to
resolve its doubts on the basis of a simple, tangible,
visible, everyday object of reassuring familiarity”)
(citations omitted); Tritek Techs., 67 Fed. Cl. at 729-30
(noting that for demonstrative evidence to be admitted, it
must comply with the Federal Rules of Evidence, including
relevance and the Fed. R. Evid. 403 balancing test);
Overstreet v. State, 877 N.E.2d 144, 168 (Ind. 2007) (“To
be admissible, [demonstrative] evidence must be
8
United States v. Pope, No. 10-0447/AF
Appellant consumed detoxification drinks before learning
she had tested positive for cocaine on the urinalysis test
underlying the charged offense. Thus, the drinks had
minimal to no probative value with respect to the only
material issue in the case -- whether Appellant’s drug
usage was knowing and therefore wrongful.
Second, the demonstrative evidence was not helpful;
the members could have easily comprehended Sweeney’s
testimony about the green detoxification drinks without the
aid of a physical example purchased by the Government. See
Benzel, 567 N.W.2d at 557-58. A bottle is neither complex
nor difficult for a member to envision; thus, the purported
replica was not sufficiently explanatory or illustrative of
Sweeney’s testimony to either outweigh its potential
prejudicial effect or be of help to the members in
determining a fact at issue. See Overstreet, 877 N.E.2d at
168; Saltzburg et al., supra, at 4-33.
Third, the bottle purchased by the Government and
introduced as a Government exhibit had a label identifying
sufficiently explanatory or illustrative of relevant
testimony to be of potential help to the trier of fact.”);
Benzel, 567 N.W.2d at 559-60 (allowing the use of exemplar
ladders as demonstrative exhibits because they “aided in
clarifying certain issues” in the case and “were more
probative than prejudicial”).
9
United States v. Pope, No. 10-0447/AF
the drink as a detoxification drink that can “[c]leanse the
[b]ody” and eliminate toxins. In contrast, the bottles
seen by Sweeney in Appellant’s possession had no labels at
all. Thus, the Government exhibit was not in fact a
replica, demonstrative of the bottles allegedly seen by
Sweeney in Appellant’s possession.
Fourth, the demonstrative evidence fails the M.R.E.
403 balancing test. See White, 23 M.J. at 88. While we
afford substantial discretion to a military judge’s
evidentiary rulings, where, as here, an objection invokes
the M.R.E. 403 balancing test but the military judge fails
to conduct the test on the record, less deference is due.
United States v. Collier, 67 M.J. 347, 353 (C.A.A.F. 2009);
see also United States v. Lebovitz, 669 F.2d 894, 901 (3d
Cir. 1982).
Relevant evidence may be excluded when its probative
value is “substantially outweighed by the danger of unfair
prejudice . . . or misleading the members.” M.R.E. 403.
Given that the demonstrative evidence in this case was not
relevant, had minimal to no probative value, and was not
even an accurate representation of the bottles described by
Sweeney, it was an abuse of discretion for the military
judge to admit it. See United States v. Perry, 37 M.J.
363, 364-65 (C.M.A. 1993).
10
United States v. Pope, No. 10-0447/AF
However, we are convinced that the use of the green
bottle as a demonstrative exhibit had no substantial impact
on the findings. The offense of wrongful use of cocaine
has two elements: (1) that the accused used cocaine; and
(2) that the use by the accused was wrongful. Manual for
Courts-Martial, United States pt. IV, para. 37.b(2) (2008
ed.) (MCM). Because Appellant stipulated to the validity
of the positive urinalysis test, only the second element --
wrongfulness -- was contested at trial. Cocaine usage is
not wrongful if the usage occurs “without knowledge of the
contraband nature of the substance.” MCM pt. IV, para.
37.c(5)(C). Drug use “may be inferred to be wrongful in
the absence of evidence to the contrary.” MCM pt. IV,
para. 37.c(5). In this case, the defense did not produce
any evidence showing that Appellant’s use of cocaine was
without knowledge, and thus not wrongful.
Moreover, the Government presented evidence of
Appellant’s admission to Sweeney that she had “messed up.”
The Government also presented circumstantial evidence of
Appellant’s consciousness of guilt, including: her nervous
behavior at the testing site, her initial failure to
provide a sufficient sample, and her eight-hour delay in
reporting to the drug testing center the following day.
11
United States v. Pope, No. 10-0447/AF
2.
Whether a jury was properly instructed is a question
of law reviewed de novo. United States v. Schroder, 65
M.J. 49, 54 (C.A.A.F. 2007). Failure to object to an
instruction given or omitted waives the objection absent
plain error. Rule for Courts-Martial (R.C.M.) 920(f).
“The plain error standard is met when: (1) an error was
committed; (2) the error was plain, or clear, or obvious;
and (3) the error resulted in material prejudice to
substantial rights.” United States v. Maynard, 66 M.J.
242, 244 (C.A.A.F. 2008) (citation and quotation marks
omitted).
When demonstrative evidence is admitted, the military
judge is required to properly instruct the members that the
evidence is for illustrative purposes only. David A.
Schlueter et al., Military Evidentiary Foundations § 4-
13[4] (3d ed. 2007); see also Finley, 75 F.3d at 1231 (“The
trial judge must make sure that the jury is not misled
concerning the actual meaning of the object in the context
of the litigation.”). Here, the military judge failed to
give such an instruction. However, because the error did
not materially prejudice Appellant’s rights, it does not
constitute prejudicial plain error. Maynard, 66 M.J. at
244.
12
United States v. Pope, No. 10-0447/AF
In this case, there is little danger that the members
would have confused the demonstrative evidence for actual
evidence. Testimony clearly established that the green
detoxification drink was bought by the Government as a
representative example of the types of drinks that
Appellant allegedly possessed. When the drink was admitted
into evidence, an Air Force investigator testified that she
bought the drink at a store on “direction from legal to
. . . see if there was an item that pretty much matched up
to this description . . . and this was the closest that I
found.” On cross-examination, defense counsel’s
questioning clarified that the investigator (1) had bought
the bottle at a store, and (2) never went to Appellant’s
room to see if she possessed similar bottles. Under these
circumstances, the members would not have mistaken the
demonstrative evidence for substantive evidence.
Furthermore, given the overwhelming evidence of Appellant’s
guilt, we are convinced that the absence of a limiting
instruction had no substantial effect on the verdict.
B.
Whether there has been improper reference to an
accused’s invocation of her constitutional right to remain
silent -- in testimony or argument -- is a question of law
that this Court reviews de novo. United States v. Moran,
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United States v. Pope, No. 10-0447/AF
65 M.J. 178, 181 (C.A.A.F. 2007). Where, as here, there
are no objections at trial, this Court reviews for plain
error. United States v. Paige, 67 M.J. 442, 449 (C.A.A.F.
2009).
Trial counsel elicited testimony that Pope was
“lackadaisical” and “didn’t care” when informed of her
positive drug test. On direct examination, trial counsel
asked the Air Force investigator, “what was [Appellant’s]
reaction?” to being told of her urinalysis results. The
investigator replied, “[v]ery lackadaisical, no response
whatsoever, just sat there as if she didn’t care.” On
redirect, trial counsel revisited this line of inquiry.
When the investigator stated that “[a]gain, she acted as
though she didn’t care,” trial counsel asked, “[w]hat was
her demeanor like?” The investigator responded, “[v]ery
lackadaisical. I wouldn’t say she didn’t act surprised,
but I would just say maybe she just didn’t care.”
In closing argument, trial counsel referenced this
testimony: “You heard [the investigator] say that
[Appellant] actually appeared lackadaisical. It didn’t
seem to faze her when she was notified that she tested
positive for cocaine because she had used cocaine. She
wasn’t surprised that she had tested positive for cocaine.”
14
United States v. Pope, No. 10-0447/AF
On the one hand, it is constitutional error to admit
evidence of -- or comment on in argument -- an accused’s
post-apprehension silence as evidence of guilt. United
States v. Alameda, 57 M.J. 190, 198-99 (C.A.A.F. 2002);
M.R.E. 301(f)(3). On the other hand, nontestimonial
demeanor evidence does not trigger Fifth Amendment
protections. Pennsylvania v. Muniz, 496 U.S. 582, 591-92
(1990); United States v. Cook, 48 M.J. 64, 66 (C.A.A.F.
1998). Because the comments at issue could be viewed as
either nontestimonial demeanor evidence or as implicating
Appellant’s right to remain silent, it is not “plain, or
clear, or obvious” that they were comments on Appellant’s
constitutional right to remain silent. See Paige, 67 M.J.
at 449 (citation and quotation marks omitted). While a
closer question, it is also not obvious that the comments
violated M.R.E. 304(h)(3) (stating that “[a] person’s
failure to deny an accusation of wrongdoing concerning an
offense for which at the time of the alleged failure the
person was under official investigation or was in
confinement, arrest, or custody does not support an
inference of an admission of the truth of the accusation”).
But even if the comments constituted either
constitutional or evidentiary error, any such error was not
prejudicial under either a constitutional or
15
United States v. Pope, No. 10-0447/AF
nonconstitutional standard. The three statements at issue
were minor comments in the context of the entire trial and
argument. See Moran, 65 M.J. at 187-88. The Government
presented overwhelming evidence of Appellant’s guilt,
including the uncontested urinalysis results, her admission
to Sweeney, and Appellant’s suspicious behavior at the
testing site. Appellant’s theory of defense was unclear
and, therefore, not strong. For these reasons, we are
convinced that the testimony and argument at issue were not
factors in obtaining Appellant’s conviction.
C.
The cumulative effect of all plain errors and
preserved errors is reviewed de novo. Cf. United States v.
Gray, 51 M.J. 1, 61 (C.A.A.F. 1999). Under the cumulative-
error doctrine, “a number of errors, no one perhaps
sufficient to merit reversal, in combination necessitate
the disapproval of a finding.” United States v. Banks, 36
M.J. 150, 170-71 (C.M.A. 1992) (citation and quotation
marks omitted). This Court will reverse only if it finds
the cumulative errors denied Appellant a fair trial. Id.
at 171.
In this case, there was overwhelming evidence of
Appellant’s guilt, and neither of the errors related to the
demonstrative evidence materially prejudiced Appellant’s
16
United States v. Pope, No. 10-0447/AF
substantial rights. Under these circumstances, Appellant
was not denied a fair trial. See United States v.
Dollente, 45 M.J. 234, 242 (C.A.A.F. 1996) (“[C]ourts are
far less likely to find cumulative error . . . when a
record contains overwhelming evidence of a defendant’s
guilt.”).
III. DECISION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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STUCKY, Judge (concurring in the result):
I concur in affirming the judgment of the United States Air
Force Court of Criminal Appeals (CCA) but write separately
because (1) I disagree with the majority’s analysis of Issue I
-- whether the military judge abused his discretion by admitting
a bottle as demonstrative evidence -- and (2) I believe Issue
III -- whether it was plain error to allow trial counsel to
elicit testimony regarding and comment on Appellant’s right to
remain silent -- warrants some additional discussion.
I.
On March 24, 2008, Appellant was ordered to provide a
sample for a random urinalysis. She reported, but the sample
she provided was of insufficient quantity and she was directed
to report again on the following day, March 25. Rather than
doing so at 6:30 a.m. as directed, Appellant reported at 2:39
p.m. The sample Appellant provided on March 25 tested positive
for cocaine metabolites.
Airman First Class (A1C) Sweeney was assigned to the
Security Forces technical training school in the same training
squadron as Appellant. On March 24, 2008, A1C Sweeney began
training and was assigned to room with Appellant. They would be
roommates for the next three to four months.
United States v. Pope, No. 10-0447/AF
Appellant told A1C Sweeney that, “when she would get messed
up, that her brother bought these drinks, these green drinks.”
Appellant said these drinks “clean out your system for a few
days.” Appellant kept some of these drinks in the refrigerator.
A1C Sweeney testified that Appellant told her that, prior to
testing positive, Appellant had gone out with her brother and
“gotten messed up” or “messed up.”
The testimony in the record provided that Appellant had the
drinks in her possession or would acquire them from her brother,
used them when she “messed up,” and that she “messed up” before
providing the sample in question. While A1C Sweeney testified
that she did not remember seeing green bottles in the
refrigerator on March 24, and she could not remember whether she
had seen Appellant drink one before Appellant provided the March
25, 2008, sample, there was enough evidence for the panel to
infer that she had. I believe this determination was a question
of fact and, as such, was for the panel to decide.
More importantly, because the bottle is demonstrative --
not substantive or real -- evidence, if the underlying testimony
is admissible, the basis for the bottle’s admission for
illustrative purposes has been formed. See United States v.
Humphrey, 279 F.3d 372, 376-77 (6th Cir. 2002) (upholding the
admission of 107 coin bags as demonstrative evidence used to
show what a large number of coin bags looks like); United States
2
United States v. Pope, No. 10-0447/AF
v. McIntosh, 23 F.3d 1454, 1456 (8th Cir. 1994) (upholding the
admission of a firearm as demonstrative evidence when it was
used to illustrate the testimony of a witness that the witness
had seen the defendant carry a similar firearm); United States
v. Golden, 671 F.2d 369, 371-72 (10th Cir. 1982) (upholding the
admission of a flashlight as demonstrative evidence when a
witness testified that a similar flashlight was involved in the
case).
A1C Sweeney did not see a label on the green drinks
Appellant acquired and occasionally used. But A1C Sweeney was
able to provide detail as to the nature of the drink Appellant
used and a description of the bottles from which she drank.
They looked like “little banded milk bottles,” that were not
square-shaped. They had “green twist cap[s],” and contained
green liquid that was “apple-flavored,” as A1C Sweeney
experienced when Appellant “broke the seal in front of [her]”
and offered her a drink. Appellant told A1C Sweeney the drinks
were meant to “clean out your system” and “detox you.” They
cost around fifty dollars.
Having followed up on this description, Investigator West
was able to locate a product that was “right on target with the
description of the taste, the colors, everything.” Trial
counsel showed this bottle to A1C Sweeney, and A1C Sweeney
testified that it looked “just the same minus the label.”
3
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Trial counsel sought to introduce a bottle of ProTox Xtreme
Strength as demonstrative evidence. As this Court’s predecessor
explained, there is a “distinction . . . between the
admissibility of substantive evidence and that which is used
solely for demonstrative purposes.” United States v. Heatherly,
21 M.J. 113, 115 (C.M.A. 1985). Demonstrative evidence is, by
definition, used to illustrate testimony rather than to “prove
or disprove a fact in issue.” Id. at 115 n.2; see also Triteck
Techs., Inc. v. United States, 67 Fed. Cl. 727, 733-34 (Fed. Cl.
2005); 2 McCormick on Evidence §§ 212-14 (6th ed. 2006).
The majority correctly states that “‘[t]he decision to
permit or deny the use of demonstrative evidence generally has
been held to be within the sound discretion of the trial
judge,’” Heatherly, 21 M.J. at 115 n.2, but appears to apply a
tougher standard here. United States v. Pope, __ M.J. __ (8)
(C.A.A.F. 2011). I do not believe testimony must be “complex”
or “difficult . . . to envision,” in order for demonstrative
evidence to “be of help to the members in determining a fact at
issue.” Id. at ___ (9). Demonstrative evidence is not rendered
inadmissible merely because a court believes the trier of fact
could have understood the testimony without a prop.1 See, e.g.,
1
I note that this is not the only piece of demonstrative
evidence introduced in Appellant’s case. The Government was
also permitted to introduce a “sample collection cup,” of the
type that would have been used to collect the specimen. This
4
United States v. Pope, No. 10-0447/AF
United States v. Aldaco, 201 F.3d 979, 986 (7th Cir. 2000)
(upholding the admissibility of a shotgun as demonstrative
evidence and listing cases).
I would hold that, because the bottle illustrated the
testimony of A1C Sweeney and Investigator West, the military
judge did not abuse his discretion in admitting it as
demonstrative evidence. If I had been the military judge in
this case, I probably would not have allowed the label in. But
the label was not unduly prejudicial. It was not overtly
incriminating and only provided that the drink’s purpose was
cleansing and detoxification of the system. A1C Sweeney
testified that this was the exact purpose for which Appellant
used the green drinks. The testimony also repeatedly made clear
to the panel that the bottles A1C Sweeney had seen in
Appellant’s possession did not have labels on them, so the
members would not have been confused. On the basis of this
testimony, and because I disagree with the majority’s conclusion
that “the drinks had minimal to no probative value,” Pope, __
M.J. at ___ (10), I do not believe the bottle fails the Military
cup was used to illustrate the testimony of Staff Sergeant
Williams, a urinalysis observer. I cannot see why the panel
needed to see a sample cup, but I would not say the military
judge abused his discretion by allowing it in.
5
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Rule of Evidence (M.R.E.) 403 balancing test. Under the
circumstances, I cannot say admission of the bottle constituted
an abuse of discretion.
II.
I agree with the majority that it is only nontestimonial
evidence of demeanor that “does not trigger Fifth Amendment
protections.” Pope, ___ M.J. at ___ (15). I write separately
because I believe Appellant’s response to being confronted with
evidence of her guilt was testimonial and therefore protected
under the Fifth Amendment and M.R.E. 304(h)(3) (“A person’s
failure to deny an accusation of wrongdoing . . . does not
support an inference of an admission of the truth of the
accusation.”). To me, the question is whether the fair response
doctrine, an exception to the Fifth Amendment protection,
applies to permit the testimony or comment.
Defense counsel, in an Article 39(a), Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 839(a) (2006), session,
expressed her intent to present evidence on Appellant’s state of
mind after being confronted to lay the foundation for an excited
utterance, under the mistaken impression that Appellant had been
handcuffed on the way to the Security Forces building. The
military judge determined that the admissibility of this
6
United States v. Pope, No. 10-0447/AF
evidence would be determined in an Article 39(a), UCMJ, session
rather than in the presence of the members. The follow-up
Article 39(a) session never occurred.
After the conclusion of the Article 39(a) session, on
direct examination before the court-martial panel, the trial
counsel elicited testimony from Investigator West regarding
Appellant’s “reaction” to and “demeanor” when being confronted
with evidence of her guilt by a law enforcement officer.
Investigator West testified that, after being informed that her
sample had come back positive for cocaine, Appellant was “[v]ery
lackadaisical,” and did not respond.
During cross-examination, defense counsel asked
Investigator West whether Appellant had been handcuffed on the
way to the Security Forces building. Upon hearing that she had
not, defense counsel apparently abandoned any attempt to lay the
foundation for an excited utterance. As a result, defense
counsel rested the defense case without inquiring into
Appellant’s state of mind when being confronted with evidence of
her guilt.
During closing arguments, trial counsel argued that the
panel should “consider the surrounding circumstances when . . .
thinking about [Appellant’s] knowledge [that she wrongfully
ingested cocaine],” and continued on to remind the panel that
“[s]he wasn’t surprised that she had tested positive for
7
United States v. Pope, No. 10-0447/AF
cocaine,” that “[i]t didn’t seem to faze her . . . because she
had used cocaine.” By commenting on Appellant’s failure to
respond, trial counsel was asking the members to infer guilt on
the basis that an innocent person would have denied the
accusation.
Trial counsel may not do this if the accused has not opened
the door under a limited exception such as the fair response
doctrine. See United States v. Robinson, 485 U.S. 25, 32-34
(1988); Doyle v. Ohio, 426 U.S. 610, 617-19 (1976); Griffin v.
California, 380 U.S. 609, 612-14 (1965); United States v. Moran,
65 M.J. 178, 181-82 (C.A.A.F. 2007); United States v. Alameda,
57 M.J. 190, 198-99 (C.A.A.F. 2002); United States v. Cook, 48
M.J. 236, 240 (C.A.A.F. 1998); United States v. Toro, 37 M.J.
313, 318 (C.M.A. 1993); United States v. Fitzpatrick, 14 M.J.
394, 398-99 (C.M.A. 1983); see also United States v. Velarde-
Gomez, 269 F.3d 1023, 1028-29 (9th Cir. 2001); United States v.
Rivera, 944 F.2d 1563, 1568-69 (11th Cir. 1991).
Had defense counsel actually inquired into Appellant’s
state of mind during the trial, trial counsel could have been
permitted under the fair response doctrine to make a limited
inquiry into her state of mind to counter a defense claim that
she was in an excited state. But defense counsel, having
discovered that Appellant had not been handcuffed, abandoned
this idea and did not open the door.
8
United States v. Pope, No. 10-0447/AF
Moreover, trial counsel belied this purpose by later
arguing that Appellant’s lack of response went to her
consciousness of guilt. However, I agree with the majority that
the comments were harmless beyond a reasonable doubt.
9